                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 30 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JOSE LUIS AVILA-AVILA,                           No. 13-72458

               Petitioner,                       Agency No. A044-367-470

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted June 22, 2015**

Before:        HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

      Jose Luis Avila-Avila, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) order of removal and denying his motion to remand.

Our jurisdiction is governed by 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 remand, and review de novo constitutional

claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005); Movsisian

v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir. 2005). We deny in part and dismiss

in part the petition for review.

      The BIA did not abuse its discretion or violate due process in denying Avila-

Avila’s motion to remand based on ineffective assistance of counsel, where Avila-

Avila failed to establish prejudice resulting from his former attorney’s

performance. See Mohammed at 793 (to prevail on an ineffective assistance of

counsel claim, petitioner must demonstrate that he was prejudiced by counsel’s

performance); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a

due process challenge, a petitioner must show error and prejudice). Avila-Avila

waived any challenge to the agency’s determination that his attorney’s alleged

failure to obtain a continuance resulted in prejudice, see Lopez-Vasquez v. Holder,

706 F.3d 1072, 1079-80 (9th Cir. 2013) (a petitioner waives a contention by failing

to raise it in the opening brief), and failed to exhaust his contention that his former

attorney failed to file an application for withholding of removal and protection

under the Convention Against Torture (“CAT”), resulting in prejudice, see Tijani v.

Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to




                                           2                                     13-72458
consider legal claims not presented in petitioner’s administrative proceedings

before the agency).

      The BIA also did not abuse its discretion or violate due process in denying

Avila-Avila’s motion to remand to apply for withholding of removal and CAT

relief, where Avila-Avila failed to establish that the evidence he submitted was not

available or could not have been obtained at the time of his removal hearing. See 8

C.F.R. § 1003.2(c)(1) (requiring “that evidence sought to be offered is material and

was not available and could not have been discovered or presented at the former

hearing”); Lata, 204 F.3d at 1246. Avila-Avila failed to exhaust his contention

that his former attorney’s alleged ineffectiveness prevented him from submitting

this evidence at his hearing. See Tijani, 628 F.3d at 1080.

      In his opening brief, Avila-Avila fails to raise, and therefore has waived, any

distinct challenge to the BIA’s dismissal of his direct appeal from the IJ’s order of

removal. See Lopez-Vasquez, 706 F.3d at 1079-80.

      In light of this disposition, we do not reach Avila-Avila’s remaining

contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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