                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 30 2009

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




                              FOR THE NINTH CIRCUIT



 HUA XIE,                                         No. 07-70109

               Petitioner,                        Agency No. A075-702-736

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

               Respondent.



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

                             Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Hua Xie, a native and citizen of China, 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 pursuant to 8



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

RB/Research
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,

and de novo claims of due process violations, including claims of ineffective

assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

       We agree with the BIA’s conclusion that Xie did not demonstrate she

received ineffective assistance from former counsel for his failure to file a motion

to reopen based on adjustment of status. See id. at 793-94 (ineffective assistance of

counsel amounts to a violation of due process if “the proceeding was so

fundamentally unfair that the alien was prevented from reasonably presenting his

case”) (internal citation omitted). Xie admits she hired a different attorney to

prepare her adjustment of status application, and the record indicates the

application was not completed until October 31, 2005, after the expiration of the

90-day motions deadline.

       We also agree with the BIA’s determination that former counsel’s failure to

inform Xie of the BIA’s August 10, 2005, decision denying reopening did not

result in prejudice. See id.

       Xie’s remaining contentions are unavailing.

       PETITION FOR REVIEW DENIED.




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