CHUNHUI CHEN, AKA Chun Hue Chen, AKA Chun Hui Chen v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUNHUI CHEN, AKA Chun Hue Chen,
AKA Chun Hui Chen,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-73251
Agency No. A205-674-227
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Chunhui Chen, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen and review de novo
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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questions of law and constitutional claims. Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying the motion to reopen for
failure to show prejudice from alleged ineffective assistance, where Chen offered
no evidence of any plausible grounds for relief. See Rojas-Garcia v. Ashcroft, 339
F.3d 814, 826-27 (9th Cir. 2003) (requiring prejudice to state a valid claim of
ineffective assistance of counsel, and explaining the presumption of prejudice for
failing to file an appeal is rebutted when petitioner does not show plausible
grounds for relief). Contrary to Chen’s contention, the BIA did not require that he
file an appeal brief with his motion in order to demonstrate prejudice.
The BIA did not err in determining that it lacked jurisdiction to consider
Chen’s eligibility for parole. See 8 C.F.R. §§ 212.5, 1212.5; Matter of Castillo-
Padilla, 25 I. & N. Dec. 257, 261 (BIA 2010) (parole authority under 8 U.S.C.
§ 1182(d)(5)(A) “is now delegated solely to the Secretary of Homeland Security”).
Contrary to Chen’s contentions, the BIA sufficiently explained its decision.
See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
The record does not support Chen’s contention that the BIA incorrectly
described its June 8, 2016, order.

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We lack jurisdiction to consider Chen’s contentions that the agency erred or
violated due process in his underlying removal proceedings, because this petition
for review is not timely as to the BIA’s June 8, 2016, order. See 8 U.S.C.
§ 1252(b)(1) (petition for review of a final order of removal must be filed within
30 days of that order); Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (this
court lacks jurisdiction to review an underlying order of removal, where a
petitioner did not seek timely review of that order, and instead filed a petition for
review from the denial of a later motion to reopen).
In light of our disposition, we do not reach Chen’s remaining contentions
regarding compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are
not required to reach non-dispositive issues).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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