
    Cesar LEYVA-HERNANDEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 16-70448
    United States Court of Appeals, Ninth Circuit.
    Submitted May 24, 2017 
    
    Filed June 1, 2017
    David Andrew Schlesinger, Esquire, Jacobs & Schlesinger LLP, San Diego, CA, for Petitioner
    Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, OIL, Anthony W. Norwood, Senior Litigation Counsel, DOJ — U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent
    Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
   MEMORANDUM

Cesar Leyva-Hernandez, 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 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. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny the petition for review.

The BIA did not err or abuse its discretion in denying Leyva-Hernandez’s motion to reopen, based on ineffective assistance of counsel, for failure to demonstrate prejudice, where he has not explained how he might have successfully challenged the BIA’s prior decision before this court had the prior petition been timely filed. See 8 C.F.R. § 214.14(c) (outlining procedures to apply for a U Visa); Mohammed v. Gonzales, 400 F.Sd 785, 793-94 (9th Cir. 2005) (to demonstrate prejudice, alien must show counsel’s performance was so inadequate that it may have affected the outcome of proceedings). In light of this determination, Leyva-Hernandez’s motion to take judicial notice (Docket Entry No. 19) is denied.

The BIA also did not err in declining to reopen based on Leyva-Hernandez’s contention that his former attorney was ineffective for failing to seek prosecutorial discretion, where prosecutorial discretion is under the authority of the Department of Homeland Security. See Hernandez-Mancilla v. Holder, 633 F.3d 1182 (9th Cir. 2011) (finding no ineffective assistance of counsel due process violation, where the actions of counsel occurred outside the context of removal proceedings).

Any errors in the BIA’s decision are harmless. See Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986) (as amended) (applying the harmless error standard to agency’s procedural error).

PETITION FOR REVIEW DENIED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     