NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE PALACIOS-AGUILAR, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 13-73915 

Agency No. A205-321-220 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 9, 2018

Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District 

Judge.

Jorge Palacios-Aguilar is a native and citizen of Mexico who entered the 

United States in 1988 without admission or parole. He was arrested in November 

2012 for possession of methamphetamine and was referred for immigration 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the 

Northern District of Ohio, sitting by designation.

FILED

MAR 22 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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proceedings. The immigration judge (IJ) denied Palacios-Aguilar’s requests for 

cancellation of removal and, in the alternative, voluntary departure. Before the 

Board of Immigration Appeals (BIA), Palacios-Aguilar argued that he had received 

ineffective assistance of counsel, but the BIA rejected that claim and concluded 

that Palacios-Aguilar had suffered no prejudice. The BIA also concluded that the 

IJ had appropriately exercised its discretion to deny voluntary departure. 

We review claims for denial of due process in deportation proceedings de 

novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). And we lack 

jurisdiction to review denials of voluntary departure. Tovar-Landin v. Ashcroft, 

361 F.3d 1164, 1166 (9th Cir. 2004). Applying our legal standards, we deny in 

part Palacios-Aguilar’s petition insofar as it relates to his claim that ineffective 

assistance of counsel offended due process, and we dismiss in part his petition 

insofar as it relates to the denial of voluntary departure.

Palacios-Aguilar appeared before the IJ three times. First, he appeared in 

November 2012 without counsel and said that he wanted to proceed without 

gaining counsel. At that time he testified that he had been convicted of possession 

of methamphetamine, that he had illegally entered the country, and that he had no 

fear of harm if returned to Mexico. The IJ found Palacios-Aguilar removable and 

that the only relief available to him was voluntary departure. The IJ continued the 

proceedings for Palacios-Aguilar to retain counsel. Second, he appeared at the 
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December 2012 hearing, and he was then represented. Counsel asked for 

cancellation of removal, and in the alternative, voluntary departure. The IJ 

concluded that cancellation of removal was not available because of PalaciosAguilar’s drug possession conviction, but was inclined to grant voluntary 

departure. Palacios-Aguilar asked for time to get his affairs in order, and the IJ 

continued the proceedings. Third, he appeared at the January 2013 hearing, at 

which time the IJ was ready to grant voluntary departure, but Palacios-Aguilar said

that he did not want to leave his children. 

The IJ ordered Palacios-Aguilar removed on January 17, 2013, and PalaciosAguilar appealed. On October 13, 2013, the BIA affirmed the IJ’s decision and 

ordered Palacios-Aguilar removed. The BIA concluded that Palacios-Aguilar had 

not shown any prejudice to support his ineffective assistance of counsel claim, and 

that the IJ did not err in denying him voluntary departure. Palacios-Aguilar was 

then removed.1

1. Palacios-Aguilar argues that the BIA incorrectly concluded that he had not 

shown prejudice. The BIA correctly concluded that although Palacios-Aguilar had 

met the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), he had 

not shown that he suffered prejudice from any error his counsel may have made. 

 

1On November 9, 2013, Palacios-Aguilar illegally reentered the United States, and 

he is currently detained for the reentry. 
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See Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011) (requiring a petitioner to 

show (1) that counsel failed to perform with competence and (2) that he was 

prejudiced by counsel’s performance). Palacios-Aguilar does not allege that he 

told his prior counsel of some fear that his counsel failed to act on. See Azanor v. 

Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004). He does not allege that there is 

evidence in the record that could establish fear of harm or torture. See Munoz v. 

Ashcroft, 339 F.3d 950, 955 (9th Cir. 2003) (concluding that because the record 

contained no evidence that could establish a well-founded fear of persecution, the 

petitioner could not show that the counsel’s deficient performance prejudiced him).

It was Palacios-Aguilar’s own testimony that he had no fear of harm or torture if 

returned to Mexico that precluded him from establishing prima facie eligibility for 

other forms of relief. The BIA did not err in concluding that Palacios-Aguilar had 

not shown prejudice. 

2. We dismiss Palacios-Aguilar’s claim that the IJ erred by denying his request 

for voluntary departure. Appellate courts ordinarily lack jurisdiction to review 

denials of voluntary departure, including statutory eligibility for voluntary 

departure because of 8 U.S.C. §§ 1252(a)(2)(B)(i) and 1229c(f), but retain 

jurisdiction if the denial raises a constitutional claim or a question of law. CorroBarragan v. Holder, 718 F.3d 1174, 1176–77 (9th Cir. 2013). 

Palacios-Aguilar’s arguments on this issue are not constitutionally based and 
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do not raise questions of law. Palacios-Aguilar argues that the BIA erred by 

finding that he was ineligible for pre-conclusion voluntary departure, and that the 

IJ erred by relying on his testimony that he did not want to be separated from his 

family in denying his request for voluntary departure. These are disputes over the 

facts that the IJ and BIA found: The first questions whether the BIA incorrectly 

found that he had not withdrawn his request for cancellation of removal, and the 

second questions the IJ’s interpretation of his statements that “I have to come back 

here, my children are here attending school, they’re studying,” and “I do not want 

to be separated from my children, please.” We do not have jurisdiction to review 

these factual disputes. See Corro-Barragan, 718 F.3d at 1177 (affirming that we 

lack jurisdiction to review discretionary denials of voluntary departure); see also 

Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010). 

PETITION DENIED in part, DISMISSED in part.