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Martinez-Hernandez v. Holder

United States Court of Appeals, Ninth Circuit

February 24, 2015

JAVIER MARTINEZ-HERNANDEZ, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Submitted, Pasadena, California: February 4, 2015. [*]

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-789-315. Agency No. A079-0789-315.

SUMMARY[***]

Immigration

The panel denied Javier Martinez-Hernandez's petition for review from the Board of Immigration Appeals' decision denying his motion to reopen on the basis of ineffective assistance of counsel.

The panel held that the BIA did not abuse its discretion by rejecting petitioner's argument that his counsel was ineffective for failure to seek cancellation of removal, because petitioner failed to make the necessary threshold showing that his claim for cancellation was plausible.

Karla L. Kraus, Kraus Law Corporation, San Diego, California, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General; Leslie McKay, Assistant Director; Kelly J. Walls, Trial Attorney, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: Michael J. Melloy,[**] Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

OPINION

Page 1087

PER CURIAM:

Petitioner Javier Martinez-Hernandez seeks review of a final order of the Board of Immigration Appeals denying a motion to reopen on the basis of ineffective assistance of counsel. We deny the petition for review.

Petitioner entered the United States at age one in 1984. In 1997, when he was still a minor, his permanent-resident mother applied on his behalf for an I-130 visa. The visa application did not progress, and in 2002, Petitioner was placed in removal proceedings. He successfully terminated those proceedings and continued pursuit of the visa. He received a visa in 2004 and was officially admitted to the United States. By that time, he was no longer a minor. He subsequently failed to apply for adjustment of status within one year as permitted by the Child Status Protection Act of 2002.[1]

Meanwhile, in October 2001, Petitioner and an accomplice committed a violent offense against a police officer. Petitioner was 18 at the time. In December 2001, Petitioner pleaded guilty to the felony offense of battery with severe bodily injury, Cal. Penal Code ยง 243(d), with an enhancement for use ...


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