Xiangshan Yuan v. Mukasey

MEMORANDUM **

Xiangshan Yuan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings based on ineffective assistance of counsel. To the extent we have jurisdiction, it is pursuant to 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 due process violations in removal proceedings, including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

Yuan’s contention that equitable tolling excuses his untimely filing is moot because the BIA considered the merits of his motion. We agree with the BIA’s conclusion that former counsel’s performance did not result in prejudice to Yuan, and thus his claim of ineffective assistance of counsel fails. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate prejudice).

Yuan’s remaining contentions were previously addressed by this court’s decision in Yuan v. Gonzales, 139 Fed.Appx. 899 (9th…