                                                                            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                             NOT FOR PUBLICATION                             JUN 30 2015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


VOLODYMYR KUZMENKO,                              No. 10-73154

               Petitioner,                       Agency No. A098-157-041

 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.

      Volodymyr Kuzmenko, a native of the former Soviet Union and a citizen of

Ukraine, petitions for review of the Board of Immigration Appeals’ (“BIA”) order

denying his motion to reopen removal proceedings. Our jurisdiction is governed

by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to


          *
             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).
reopen, review for substantial evidence the agency’s factual determinations, and

review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-

92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion in denying Kuzmenko’s motion to

reopen based on ineffective assistance of counsel, where Kuzmenko failed to

establish prejudice resulting from his former attorney’s alleged ineffective

assistance. See id. at 793 (to prevail on an ineffective assistance of counsel claim,

a petitioner must demonstrate that counsel failed to perform with sufficient

competence and that he was prejudiced by counsel’s performance). The record

does not support Kuzmenko’s contention that his attorney failed to understand that

his claim was for an imputed political opinion, and because substantial evidence

supports the IJ’s determination that, even if Kuzmenko had been deemed credible,

his claim for asylum and related relief fails on the merits, Kuzmenko cannot

establish prejudice resulting from any alleged attorney errors related to the IJ’s

adverse credibility determination.

      We lack jurisdiction to consider Kuzmenko’s unexhausted contention that

his attorney erred in earlier filing a motion to reopen to apply for adjustment of

status. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks




                                           2                                    10-73154
jurisdiction to consider legal claims not presented in an alien’s administrative

proceedings before the agency).

      Further, we deny Kuzmenko’s request for judicial notice of non-relevant,

extra-record information discussed in his opening brief. See 8 U.S.C.

§ 1252(b)(4)(A) (“the court of appeals shall decide the petition only on the

administrative record on which the order of removal is based”); Ruiz v. City of

Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (judicial notice is

inappropriate where the facts to be noticed are not relevant to the disposition of the

issues before the court).

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

contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                           3                                    10-73154
