                             NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       DEC 19 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 JOSE NOLASCO, AKA Jose Ternistoc                 No.    14-73341
 Nolasco,
                                                  Agency No. A200-243-062
                   Petitioner,

   v.                                             MEMORANDUM*

 LORETTA E. LYNCH, Attorney General,

                   Respondent.

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

                           Submitted December 14, 2016**

Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.

        Jose Nolasco, 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 denying his motion to reopen removal

proceedings. We have jurisdiction under 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 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).
discretion the denial of a motion to reopen and review de novo questions of law.

Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004). We deny the petition for

review.

      The agency did not abuse its discretion in denying the motion to reopen,

where Nolasco did not provide sufficient evidence to show his counsel’s

performance fell outside “the wide range of reasonable professional assistance,” or

to overcome the presumption that counsel’s actions were tactical. Torres-Chavez

v. Holder, 567 F.3d 1096, 1101 (9th Cir. 2009).

      In light of this determination, we do not address Nolasco’s contention that

the agency erred in its application of case law regarding prejudice.

      The agency did not violate due process by not providing hearing transcripts,

where the BIA informed Nolasco of his ability to listen to audio recordings of the

hearing and there is no obligation for the BIA to provide a transcript. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an

alien must show error and prejudice); cf. Singh v. Holder, 638 F.3d 1196, 1208 (9th

Cir. 2011) (“[I]n lieu of providing a transcript, the immigration court may record

[bond] hearings and make the audio recordings available for appeal upon request.”)

      The BIA did not err in not reviewing Nolasco’s appeal for abuse of

                                          2                                   14-73341
discretion, where it correctly cited to and applied the standards set out in 8 C.F.R.

§ 1003.1(d)(3)(i)-(ii).

      Nolasco’s contentions that the agency made up facts, that a hearing is

necessary to resolve the conflict between his and his attorney’s statements, and that

the agency interfered with a prompt resolution to his proceedings are not supported

by the record or case law.

      PETITION FOR REVIEW DENIED.




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