                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 03 2010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



JESUS FLORES-PELAYO,                             No. 06-75135

              Petitioner,                        Agency No. A037-429-770

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

              Respondent.



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

                            Submitted August 31, 2010 **
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Jesus Flores-Pelayo (“Flores”), a native and citizen of Mexico and

permanent resident of the United States, was convicted of lewd and lascivious acts

with a child in violation of California Penal Code § 288. Flores was charged as

removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act for his

        *
             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).
conviction of an aggravated felony offense. After a merits hearing, the

immigration judge (“IJ”) found that Flores’s conviction constituted an aggravated

felony, denied his application for § 212(c) relief, and ordered his removal to

Mexico. At his initial removal proceeding, Flores was represented by Michael

Johnson-Ortiz, who has since been disbarred, in part for his deficient performance

with regard to his representation of Flores. Flores submitted a motion to reopen

based on ineffective assistance of counsel, which the IJ denied. The Board of

Immigration Appeals (“BIA”) dismissed Flores’s appeals from both decisions, as

well as his motion to reconsider its order.

      On appeal, we granted the government’s unopposed motion to remand based

on Maravilla Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004), which held that

to establish ineffective assistance of counsel, a prima facie showing of eligibility

for relief was not necessary, and an alien need only to show that counsel’s

assistance was so inadequate that it may have affected the case’s outcome. On

remand, the BIA again denied relief, noting that there was no dispute about the

underlying facts pertaining to Flores’s aggravated felony offense and that any

ineffective assistance by counsel would not have affected the outcome. Flores now

petitions for review of the BIA’s denial of his motion to reconsider, and of the




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BIA’s dismissal of his appeal of the IJ’s order denying his motion to reopen based

on a claim of ineffective assistance of counsel.

      We conclude that any ineffective assistance of counsel in Flores’s initial

removal proceeding is immaterial, because after our recent en banc decision in

Abebe v. Mukasey, Flores is no longer statutorily eligible for § 212(c) relief.

554 F.3d 1203, 1205 (9th Cir. 2009) (en banc) (overruling Tapia-Acuna v. INS,

640 F.2d 223 (9th Cir. 1981), and holding that “[u]nder its plain language, section

212(c) gives the Attorney General discretion to grant lawful permanent residents

relief only from inadmissibility—not deportation.” (footnote omitted)). Because

Flores has not challenged his removability and has petitioned for no other relief,

there is no basis on which we may grant relief.

      PETITION DENIED.




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