                                                                            FILED
                              NOT FOR PUBLICATION                            JUN 03 2010

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




                              FOR THE NINTH CIRCUIT



JASPAL SINGH; et al.,                             No. 07-70851

               Petitioners,                       Agency Nos. A077-819-214
                                                              A077-819-215
  v.                                                          A077-819-216
                                                              A077-819-217
ERIC H. HOLDER Jr., Attorney General,                         A077-819-218

               Respondent.
                                                  MEMORANDUM *



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Jaspal Singh and his family, natives and citizens of India, petition for review

of the Board Immigration Appeals’ (“BIA”) order denying both their motion to

reopen based on ineffective assistance of counsel and their motion to remand. We

have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the

          *
             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).
denial of a motion to remand, Rodriguez v. INS, 841 F.2d 865, 867 (1987), and the

denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.

2005). We review de novo ineffective assistance of counsel claims. See id. at 791-

92. We deny the petition for review.

       Singh contends the BIA erred in denying his motion to reopen because his

former counsel’s failure to include further medical documentation and experts to

substantiate his inability to testify in court based on his mental illness, to file a

change of venue, and to interview additional witness and call them to testify. The

BIA did not abuse its discretion in denying Singh’s motion to reopen because he

failed to establish that his former counsel’s performance was ineffective, see

Mohammed, 400 F.3d at 793, or that it resulted in prejudice, see Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an ineffective assistance

of counsel claim, petitioner must demonstrate prejudice).

       In addition, the BIA did not abuse its discretion in denying as untimely

Singh’s motion to remand based on evidence to bolster his Convention Against

Torture claim, because the evidence he submitted was not material and was

available at the time of his merits hearing. See Rodriquez, 841 F.2d at 867

(“Motions to reopen [and remand] in deportation proceedings shall not be granted

unless it appears to the Board that evidence sought to be offered is material and


                                             2                                      07-70851
was not available and could not have been discovered or presented at the former

hearing.”).

      Singh’s request for judicial notice is granted.

      PETITION FOR REVIEW DENIED.




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