                                                                           FILED
                             NOT FOR PUBLICATION                           OCT 25 2013

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



                             FOR THE NINTH CIRCUIT


RODELMIRO JESUS ESTRADA-                         No. 11-72668
CASTILLO,
                                                 Agency No. A095-723-433
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted October 15, 2013**

Before:        FISHER, GOULD, and BYBEE, Circuit Judges.

       Rodelmiro Jesus Estrada-Castillo, a native and citizen of Guatemala,

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

his motion to reconsider and to reopen removal proceedings based on ineffective

assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

          *
             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).
for abuse of discretion the denial of motions to reopen and reconsider, and review

de novo claims of due process violations. Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We deny the petition for review.

      Construed as a motion to reconsider, the BIA was within its discretion in

denying Estrada-Castillo’s motion where the motion failed to identify any error of

fact or law in the BIA’s prior decision denying reopening. See 8 C.F.R.

§ 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir. 2001)

(en banc) (purpose of a motion to reconsider is not to raise new facts, but rather to

demonstrate that the immigration judge or the BIA erred as a matter of law or fact).

It follows that Estrada-Castillo’s due process claim fails. See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due

process claim).

      Construed as a motion to reopen, the BIA did not abuse its discretion in

denying the motion because Estrada-Castillo failed to establish 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).

      PETITION FOR REVIEW DENIED.




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