                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 02 2011

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




                              FOR THE NINTH CIRCUIT



VIOLETA CLOTILDE ARTETA,                          No. 09-72144

               Petitioner,                        Agency No. A095-198-937

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Violeta Clotilde Arteta, a native and citizen of Peru, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen

based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen and


          *
             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).
review for substantial evidence findings of fact regarding counsel’s performance,

Mohammed v. Gonzales, 400 F.3d 784, 791 (9th Cir. 2005), and we deny the

petition for review.

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

because she did not establish that her former counsel “failed to perform with

sufficient competence.” Mohammed, 400 F.3d at 793. The BIA did not abuse its

discretion by it crediting Arteta’s former counsel’s statement that she informed

Arteta about the BIA’s denial of her appeal over Arteta’s unsworn statement to the

contrary. See INS v. Wang, 450 U.S. 139, 142-44 (1981) (agency did not abuse its

discretion in denying motion to reopen where it declined to credit unsworn

allegations that were conclusory and unbelievable); cf. Sembiring v. Gonzales, 499

F.3d 981, 989-90 (9th Cir. 2007) (agency abused discretion in denying motion to

rescind in absentia removal order when it required sworn affidavit from pro se

alien who presented plausible allegations); Ghahremani v. Gonzales, 498 F.3d 993,

999 (9th Cir. 2007) (agency required to accept as true the allegations in petitioner’s

sworn affidavit where it did not find the allegations to be inherently unbelievable).

      PETITION FOR REVIEW DENIED.




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