MONTERO PEREYDA AKA v. SESSIONS III (2018)

MEMORANDUM **

Samuel Montero-Pereyda, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). We deny the petition for review.

The BIA did not abuse its discretion in denying Montero-Pereyda’s motion to reopen based on ineffective assistance of counsel for failure to show prejudice. See Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 2005) (to demonstrate ineffective assistance of counsel, petitioner must show counsel failed to perform with sufficient competence and that petitioner was prejudiced by counsel’s performance; to show prejudice, petitioner must show counsel’s performance was so inadequate it may have affected the outcome of proceedings).

Because the prejudice determination is dispositive, we do not reach Montero-Pereyda’s contentions regarding former counsel’s performance. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

Montero-Pereyda’s contention that the BIA applied the incorrect standard with regard to his claim under the Convention Against Torture is not supported.

PETITION FOR REVIEW DENIED.