                                                                            FILED
                             NOT FOR PUBLICATION                             MAY 05 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOSE JOAQUIN GUTIERREZ,                          No. 09-73087

               Petitioner,                       Agency No. A078-018-624

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Jose Joaquin Gutierrez, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen. We have jurisdiction udner 8 U.S.C. § 1252. We review for abuse of




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of a motion to reopen, Ray v. Gonzales, 439 F.3d 582, 586

(9th Cir. 2006), and we deny the petition for review.

      In its order denying his motion to reopen based on ineffective assistance of

counsel, the BIA noted that Gutierrez had failed to provide criminal records to

rebut his prior admission before the immigration judge that he had two controlled

substance convictions. The BIA thus concluded that even assuming arguendo that

Gutierrez’s prior counsel failed to perform with sufficient competence, Gutierrez

could not demonstrate prejudice because his convictions rendered him

inadmissable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and therefore ineligible for

adjustment of status under 8 U.S.C. § 1255(i)(2)(A).

      In his opening brief, Gutierrez argues for the first time that he was not

actually convicted of any controlled substance offenses and presents this court with

conviction records to support this argument. We may not consider these

conviction documents in deciding the petition for review as they are not part of the

administrative record. See Fisher v. INS, 79 F.3d 955, 964 (9th Cir. 1996) (en

banc) (evidence outside record may be considered only if the BIA considered it, or

if the BIA abused its discretion in denying motion to consider it).

      Because Gutierrez did not demonstrate prejudice before the BIA, the BIA

did not abuse its discretion in denying his motion to reopen based on the record


                                          2                                       09-73087
before it. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (no prejudice

where petitioner failed to describe the evidence that his counsel incompetently

failed to introduce); see also Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th

Cir. 2010) (approving reliance on an alien’s admission that he had been convicted

of a controlled substance offense in denying application for adjustment of status).

      PETITION FOR REVIEW DENIED.




                                          3                                   09-73087
