facts necessary to decide the petition. 2 1. The BIA’s conclusion that Tiscareno-Guillen failed to show that his

counsel was ineffective is supported by substantial evidence. First,

Tiscareno-Guillen did not testify that his family was targeted due to their alleged

refusal to cooperate with the anonymous callers “as a matter of principle,” he

testified that his family decided not to pay the callers because his family

discovered that his cousin had not in fact been kidnaped and that they called the

second time to “ask[] for the same thing as the first incident.” Counsel’s tactical

decision to argue a persecution theory that aligned with petitioner’s testimony was

not ineffective. See Hernandez-Ortiz v. Garland, 32 F.4th 794, 802 (9th Cir.

2022). Moreover, Tiscareno-Guillen cannot show prejudice because he does not

establish that the immigration judge’s conclusion that Tiscareno-Guillen failed to

show past or future persecution may have been affected if counsel had argued a

different theory. Nor does he establish that his counsel’s performance may have

affected the immigration judge’s determination that he failed to demonstrate it was

“more likely than not” he would be tortured in Mexico. See 8 C.F.R.

§ 1208.16(c)(2).

2. The BIA did not abuse its discretion when it concluded that Tiscareno-

Guillen did not meet his burden to show that he is eligible for special rule

cancellation of removal. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th

3 Cir. 2016) (“A motion to reopen will not be granted unless the respondent

establishes a prima facie case of eligibility for the underlying relief sought.”).

Tiscareno-Guillen was convicted of assault with a deadly weapon pursuant to

California Penal Code § 245(a)(1), which is a “crime involving moral turpitude”

rendering him inadmissible. See 8 U.S.C. § 1229b(b)(2)(A)(iv); Safaryan v. Barr,

975 F.3d 976, 988 (9th Cir. 2020). And Tiscareno-Guillen is not eligible for the

“petty offense exception” in 8 U.S.C. § 1182(a)(2)(A)(ii)(II) because the maximum

penalty for a § 245(a)(1) conviction exceeds the exception’s limit of one year.

3. Tiscareno-Guillen’s remaining arguments are not properly before us

because they were not presented to the BIA. See Fuentes v. Lynch, 837 F.3d 966,

968 (9th Cir. 2016) (per curiam).

PETITION DENIED.

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