NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 22 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE PALACIOS-AGUILAR, No. 13-73915

Petitioner, Agency No. A205-321-220

v.

MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 9, 2018 Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District Judge.

Jorge Palacios-Aguilar is a native and citizen of Mexico who entered the

United States in 1988 without admission or parole. He was arrested in November

2012 for possession of methamphetamine and was referred for immigration

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. proceedings. The immigration judge (IJ) denied Palacios-Aguilar’s requests for

cancellation of removal and, in the alternative, voluntary departure. Before the

Board of Immigration Appeals (BIA), Palacios-Aguilar argued that he had received

ineffective assistance of counsel, but the BIA rejected that claim and concluded

that Palacios-Aguilar had suffered no prejudice. The BIA also concluded that the

IJ had appropriately exercised its discretion to deny voluntary departure.

We review claims for denial of due process in deportation proceedings de

novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). And we lack

jurisdiction to review denials of voluntary departure. Tovar-Landin v. Ashcroft,

361 F.3d 1164, 1166 (9th Cir. 2004). Applying our legal standards, we deny in

part Palacios-Aguilar’s petition insofar as it relates to his claim that ineffective

assistance of counsel offended due process, and we dismiss in part his petition

insofar as it relates to the denial of voluntary departure.

Palacios-Aguilar appeared before the IJ three times. First, he appeared in

November 2012 without counsel and said that he wanted to proceed without

gaining counsel. At that time he testified that he had been convicted of possession

of methamphetamine, that he had illegally entered the country, and that he had no

fear of harm if returned to Mexico. The IJ found Palacios-Aguilar removable and

that the only relief available to him was voluntary departure. The IJ continued the

proceedings for Palacios-Aguilar to retain counsel. Second, he appeared at the

2 December 2012 hearing, and he was then represented. Counsel asked for

cancellation of removal, and in the alternative, voluntary departure. The IJ

concluded that cancellation of removal was not available because of Palacios-

Aguilar’s drug possession conviction, but was inclined to grant voluntary

departure. Palacios-Aguilar asked for time to get his affairs in order, and the IJ

continued the proceedings. Third, he appeared at the January 2013 hearing, at

which time the IJ was ready to grant voluntary departure, but Palacios-Aguilar said

that he did not want to leave his children.

The IJ ordered Palacios-Aguilar removed on January 17, 2013, and Palacios-

Aguilar appealed. On October 13, 2013, the BIA affirmed the IJ’s decision and

ordered Palacios-Aguilar removed. The BIA concluded that Palacios-Aguilar had

not shown any prejudice to support his ineffective assistance of counsel claim, and

that the IJ did not err in denying him voluntary departure. Palacios-Aguilar was

then removed.1

1. Palacios-Aguilar argues that the BIA incorrectly concluded that he had not

shown prejudice. The BIA correctly concluded that although Palacios-Aguilar had

met the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), he had

not shown that he suffered prejudice from any error his counsel may have made.

1 On November 9, 2013, Palacios-Aguilar illegally reentered the United States, and he is currently detained for the reentry.

3 See Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011) (requiring a petitioner to

show (1) that counsel failed to perform with competence and (2) that he was

prejudiced by counsel’s performance). Palacios-Aguilar does not allege that he

told his prior counsel of some fear that his counsel failed to act on. See Azanor v.

Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004). He does not allege that there is

evidence in the record that could establish fear of harm or torture. See Munoz v.

Ashcroft, 339 F.3d 950, 955 (9th Cir. 2003) (concluding that because the record

contained no evidence that could establish a well-founded fear of persecution, the

petitioner could not show that the counsel’s deficient performance prejudiced him).

It was Palacios-Aguilar’s own testimony that he had no fear of harm or torture if

returned to Mexico that precluded him from establishing prima facie eligibility for

other forms of relief. The BIA did not err in concluding that Palacios-Aguilar had

not shown prejudice.

2. We dismiss Palacios-Aguilar’s claim that the IJ erred by denying his request

for voluntary departure. Appellate courts ordinarily lack jurisdiction to review

denials of voluntary departure, including statutory eligibility for voluntary

departure because of 8 U.S.C. §§ 1252(a)(2)(B)(i) and 1229c(f), but retain

jurisdiction if the denial raises a constitutional claim or a question of law. Corro-

Barragan v. Holder, 718 F.3d 1174, 1176–77 (9th Cir. 2013).

Palacios-Aguilar’s arguments on this issue are not constitutionally based and

4 do not raise questions of law. Palacios-Aguilar argues that the BIA erred by

finding that he was ineligible for pre-conclusion voluntary departure, and that the

IJ erred by relying on his testimony that he did not want to be separated from his

family in denying his request for voluntary departure. These are disputes over the

facts that the IJ and BIA found: The first questions whether the BIA incorrectly

found that he had not withdrawn his request for cancellation of removal, and the

second questions the IJ’s interpretation of his statements that “I have to come back

here, my children are here attending school, they’re studying,” and “I do not want

to be separated from my children, please.” We do not have jurisdiction to review

these factual disputes. See Corro-Barragan, 718 F.3d at 1177 (affirming that we

lack jurisdiction to review discretionary denials of voluntary departure); see also

Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).

PETITION DENIED in part, DISMISSED in part.

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