Tian Li v. Gonzales

MEMORANDUM **

Tian Li, a native and citizen of China, petitions for review of the Board of Immi *503 gration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for a waiver of inadmissibility. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review de novo non-discretionary eligibility determinations and due process challenges in immigration proceedings. See Vasquez-Zavalo, v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003) (due process challenge); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.2002) (non-discretionary eligibility determination). We deny the petition for review.

Li did not appeal from the IJ’s decision denying his request for a waiver of inadmissibility pursuant to former § 212(c) of the Immigration and Nationality Act. Instead, Li claimed ineffective assistance of counsel led him to seek a 212(c) waiver rather than pursue a claim for withholding of removal. Because Li failed to present evidence that he was prima facie eligible for withholding, the BIA did not err in finding Li failed to establish prejudice resulted from the alleged ineffective assistance of counsel. See Lin v. Ashcroft,…