                                                                            FILED
                                NOT FOR PUBLICATION                          DEC 28 2009

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




                                FOR THE NINTH CIRCUIT



 FRANCISCO OREJEL-GARCIA,                           No. 07-71505

                 Petitioner,                        Agency No. A078-193-189

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

                 Respondent.



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

                               Submitted December 15, 2009 **

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

        Francisco Orejel-Garcia, a native and citizen of Mexico, petitions for review

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

removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We



            *
             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).

/Research
review for abuse of discretion the denial of a motion to reopen, and review de novo

questions of law, including claims of due process violations due to ineffective

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

2005). We deny the petition for review.

        We agree with the BIA that Orejel-Garcia’s motion failed to demonstrate

that the performance by former counsel resulted in prejudice. See Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 826-27 (9th Cir. 2003) (no prejudice where motion failed

to present plausible grounds for relief). We reject Orejel-Garcia’s contention that

the BIA utilized an improper standard in its prejudice determination. See id.

        To the extent Orejel-Garcia contends that the BIA failed to consider some of

the evidence he submitted with the motion to reopen, he has not overcome the

presumption that the BIA did review the record. See Fernandez v. Gonzales, 439

F.3d 592, 603 (9th Cir. 2006).

        PETITION FOR REVIEW DENIED.




/Research                                 2                                     07-71505
