                                                                           FILED
                               NOT FOR PUBLICATION                          DEC 21 2012

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




                               FOR THE NINTH CIRCUIT



CESAR HERNANDEZ; MATILDE                           No. 11-71024
VELAZQUEZ DE HERNANDEZ,
                                                   Agency Nos. A076-674-321
               Petitioners,                                    A076-674-413

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

               Respondent.



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

                              Submitted December 19, 2012 **

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

       Cesar Hernandez and Matilde Velazquez De Hernandez, natives and citizens

of Mexico, petition for review of an order of the Board of Immigration Appeals

(“BIA”) denying their motion to reopen alleging ineffective assistance of counsel.




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

BIA’s denial of a motion to reopen and review de novo claims of ineffective

assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny the petition for review.

      The BIA did not abuse its discretion by denying petitioners’ motion to

reopen for failure to establish prejudice, where petitioners did not present evidence

that any additional affidavits or testimony that their first two attorneys had

allegedly failed to introduce would have reconciled petitioners’ vague and

inconsistent testimony asserting that they possessed the ten years of continuous

physical presence required for cancellation of removal, see id. at 793-94

(“[P]rejudice results when the performance of counsel was so inadequate that it

may have affected the outcome of the proceedings.” (citation and internal quotation

marks omitted)). The BIA also did not apply an incorrect legal standard for

assessing prejudice by requiring petitioners to identify objective, material evidence

of their physical presence that their first two former attorneys allegedly failed to

introduce at the removal hearing. See Ortiz v. INS, 179 F.3d 1148, 1153-54

(9th Cir. 1999) (rejecting a claim of ineffective assistance of counsel for failure to

establish prejudice where the petitioners did not explain what testimonial evidence

their attorney allegedly should have elicited during their removal hearing).


                                           2                                     11-71024
      Finally, the BIA did not improperly fail to consider petitioners’ claim that

their third attorney was ineffective by not timely filing a motion to reopen alleging

ineffective assistance from petitioners’ first two attorneys, because this issue was

immaterial to the disposition of petitioners’ request for reopening. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976) (“[C]ourts and agencies are not required to

make findings on issues the decision of which is unnecessary to the results they

reach.”).

      In light of our disposition, we decline to address whether petitioners’ former

attorneys’ performance was ineffective. See Mendez-Alcaraz v. Gonzales,

464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive challenges to

a BIA order).

      PETITION FOR REVIEW DENIED.




                                           3                                    11-71024
