                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 25 2011

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




                            FOR THE NINTH CIRCUIT



IDANIA MAYBELI ROSALES-PICEN,                    No. 07-72562

              Petitioner,                        Agency No. A076-680-122

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

              Respondent.



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

                       Argued and Submitted March 18, 2011
                             San Francisco, California

Before: WALLACE, NOONAN, and CLIFTON, Circuit Judges.


       Idania Rosales-Picen (“Rosales-Picen”) petitions for review of a decision of

the Board of Immigration Appeals (“BIA”) denying her motion to reopen removal

proceedings based on ineffective assistance of counsel. We have jurisdiction under

8 U.S.C. § 1252.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-311.
      We review ineffective assistance of counsel claims de novo and findings of

fact regarding counsel’s performance for substantial evidence. Lin v. Ashcroft, 377

F.3d 1014, 1024 (9th Cir. 2004). Ineffective assistance of counsel claims require a

showing of prejudice to succeed. Id. Upon review of the record, we conclude that

Rosales-Picen did not demonstrate prejudice arising out of prior counsel’s failure

properly to investigate and present Rosales-Picen’s asylum claim based on her fear

of persecution by the guerrillas in Guatemala. The new evidence Rosales-Picen

offered in support of her motion to reopen does not undermine the agency’s prior

conclusions that (1) Rosales-Picen did not establish past persecution, and (2)

Rosales-Picen failed to prove that she could not reasonably relocate to a place

within Guatemala where she would be safe from the guerrillas.

      Substantial evidence supports the BIA’s finding that “it was not clear that a

claim based on domestic violence [was] sustainable in 1999.” Accordingly, the

BIA did not err when it concluded that prior counsel Miguel Gadda’s failure to

present a domestic-violence based asylum claim in 1999 did not amount to

ineffective assistance.

      The petition for review is DENIED.




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