                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CESAR LEYVA-HERNANDEZ,                          No.    16-70448

                Petitioner,                     Agency No. A096-221-514

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Cesar Leyva-Hernandez, a native and citizen of Mexico, petitions for review

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

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for

abuse of discretion the denial of a motion to reopen and review de novo questions


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny the petition

for review.

      The BIA did not err or abuse its discretion in denying Leyva-Hernandez’s

motion to reopen, based on ineffective assistance of counsel, for failure to

demonstrate prejudice, where he has not explained how he might have successfully

challenged the BIA’s prior decision before this court had the prior petition been

timely filed. See 8 C.F.R. § 214.14(c) (outlining procedures to apply for a U Visa);

Mohammed v. Gonzales, 400 F.3d 785, 793-94 (9th Cir. 2005) (to demonstrate

prejudice, alien must show counsel’s performance was so inadequate that it may

have affected the outcome of proceedings). In light of this determination, Leyva-

Hernandez’s motion to take judicial notice (Docket Entry No. 19) is denied.

      The BIA also did not err in declining to reopen based on Leyva-Hernandez’s

contention that his former attorney was ineffective for failing to seek prosecutorial

discretion, where prosecutorial discretion is under the authority of the Department

of Homeland Security. See Hernandez-Mancilla, 633 F.3d at 1182 (finding no

ineffective assistance of counsel due process violation, where the actions of

counsel occurred outside the context of removal proceedings).

      Any errors in the BIA’s decision are harmless. See Vides-Vides v. INS, 783

F.2d 1463, 1469 (9th Cir. 1986) (as amended) (applying the harmless error




                                          2                                     16-70448
standard to agency’s procedural error).

      PETITION FOR REVIEW DENIED.




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