Cesar Hernandez v. Eric Holder, Jr.

MEMORANDUM

Cesar Hernandez and Matilde Velazquez De Hernandez, natives and citizens of Mexico, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen alleging ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the BIA’s denial of a motion to reopen and review de novo claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

The BIA did not abuse its discretion by denying petitioners’ motion to reopen for failure to establish prejudice, where petitioners did not present evidence that any additional affidavits or testimony that their first two attorneys had allegedly failed to introduce would have reconciled petitioners’ vague and inconsistent testimony asserting that they possessed the ten years of continuous physical presence required for cancellation of removal, see id. at 793-94 (“[Pjrejudice results when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings.” (citation and internal quotation marks omitted)). The BIA also did not apply an…