Rosales, et al v. Holder, No. 07-72563 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 25 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT VICTOR MANUEL ROSALES, Petitioner, No. 07-72563 Agency No. A076-675-491 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 18, 2011 San Francisco, California Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges. Victor Rosales ( Rosales ) petitions for review of a decision of the Board of Immigration Appeals ( BIA ) denying his motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. We review ineffective assistance of counsel claims de novo and findings of fact regarding counsel s performance for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th Cir. 2004). Ineffective assistance of counsel claims require a showing of prejudice to succeed. Id. Upon review of the record, we conclude that the BIA did not err in determining that Rosales did not demonstrate prejudice arising out of his prior counsel s failure to properly investigate and present additional testimony and documentary evidence. Evidence that it was difficult for Rosales to maintain his anonymity in one Guatemalan town, Salama, does not undermine the agency s previous conclusion that Rosales could reasonably relocate within Guatemala. The petition for review is DENIED. 2

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