Jose Avila-Avila v. Loretta E. Lynch

MEMORANDUM

Jose Luis Avila-Avila, a native and citizen of-Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) order of removal and denying his motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252 . We review for abuse of discretion .the denial of a motion to remand, and review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005); Movsisian v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir.2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion or violate due process in denying Avila-Avila’s motion to remand based on ineffective assistance of counsel, where Avila-Avila failed to establish prejudice resulting from his former attorney’s performance. See Mohammed at 793 (to prevail on an ineffective assistance of counsel claim, petitioner must demonstrate that 'he was prejudiced by counsel’s performance); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (to prevail on a due process challenge, a petitioner must show error and prejudice). Avila-Avila waived any challenge to the agency’s determination that his…