NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESTER REYNALDO POZUELO 

ARRIAZA, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

Nos. 15-72484

 14-71557

Agency No. A206-034-002 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges.

In these consolidated petitions for review, Lester Reynaldo Pozuelo Arriaza, 

a native and citizen of Guatemala, petitions for review of the Board of Immigration 

Appeals’ (“BIA”) orders denying his motion to reopen removal proceedings and 

dismissing his appeal from an immigration judge’s decision denying his 

 

* 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

NOV 20 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-72484; 14-71557

application for asylum, withholding of removal, and relief under the Convention 

Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review for 

abuse of discretion the denial of a motion to reopen and review de novo questions 

of law. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the 

petition for review.

The BIA did not err or abuse its discretion in denying Pozuelo Arriaza’s 

motion to reopen based on ineffective assistance of counsel for failure to show 

prejudice, where Pozuelo Arriaza did not establish that his prior counsel’s

performance may have affected the outcome of his proceedings. See Mohammed 

v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005) (to establish prejudice for an 

ineffective assistance of counsel claim, an alien must demonstrate that counsel’s 

performance may have affected the outcome of the proceedings). We are not 

persuaded that a presumption of prejudice is required here. Cf. SantiagoRodriguez v. Holder, 657 F.3d 820, 835 (9th Cir. 2011) (proceedings are subject to 

a presumption of prejudice where an attorney’s incompetence prevents an alien 

from presenting his case altogether). We reject Pozuelo Arriaza’s contentions that 

the BIA engaged in improper fact-finding or applied an incorrect legal standard in 

its prejudice determination.

Contrary to Pozuelo Arriaza’s contentions, the BIA adequately considered 

his new arguments and evidence, and sufficiently explained its decision. See 
3 15-72484; 14-71557

Najmabadi, 597 F.3d at 990 (“What is required is merely that [the BIA] consider 

the issues raised, and announce its decision in terms sufficient to enable a 

reviewing court to perceive that it has heard and thought and not merely reacted.” 

(internal quotation marks omitted)). 

In light of our disposition, we do not reach Pozuelo Arriaza’s contentions 

regarding his prior counsel’s alleged ineffectiveness or the timeliness of his motion 

to reopen. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and 

agencies are not required to reach non-dispositive issues).

Pozuelo Arriaza has waived any challenge to the BIA’s May 22, 2014, order 

dismissing his direct appeal. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 

n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver).

PETITION FOR REVIEW DENIED.