FILED
United States Court of Appeals
Tenth Circuit
May 28, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
ANTONIO CAMBEROS,
Petitioner,
v. No. 07-9556
(Petition for Review)
MICHAEL B. MUKASEY,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
Antonio Camberos, a Mexican citizen, petitions for review of an order
issued by the Board of Immigration Appeals (BIA) denying his motion to reopen
removal proceedings initiated against him. Discerning no abuse of discretion on
the part of the BIA, we deny Camberos’ petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
Camberos was paroled into the United States on July 20, 1999, to pursue an
application for adjustment of status based on his marriage to Camille Elaine
Hogue, a United States citizen, and Hogue’s petition for an alien relative
(Form I-130). By October 21 of the same year, Camberos and Hogue separated
and she withdrew her petition. Camberos was placed in removal proceedings.
Camberos, represented by counsel, conceded removability at a hearing
before an Immigration Judge (IJ) in April 2003. He explained, however, that he
had been abused by Hogue and that he wished to file a special immigrant visa
application (Form I-360). See 8 U.S.C. § 1154(a)(1)(A)(iii)(I), (II)(aa)(CC)(ccc)
(setting forth the procedure for adjustment to immigrant status for an alien whose
marriage to a U.S. citizen terminated on account of “battering or extreme cruelty
by the United States citizen spouse”); 8 C.F.R. §§ 204.1(a)(3), 204.2(c)
(describing visa self-petitioning procedure).
Camberos, however, married another United States citizen only two weeks
before his next scheduled hearing. Thus, he became ineligible for a visa as a
battered spouse. See Admin. R. at 14 (denying visa application because
Camberos’ divorce and remarriage meant that he could not demonstrate a
qualifying relationship). At the hearing, the attorney notified the IJ that
Camberos was abandoning his I-360 application and requested a continuance for
the adjudication of Camberos’ new application for adjustment of status based
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upon his recent marriage. The IJ denied the continuance request, observing that
the case had been pending three years and the court was “not going to wait
another year or year and a half for [Camberos] to get this situation straightened
out.” Admin. R. at 183. Noting that it “looks like . . . a case that’s . . . going to
go forever,” the IJ ordered Camberos removed. Id. at 188. Camberos’ attorney
filed a notice of appeal with the Board of Immigration Appeals (BIA), but failed
to file a separate brief.
The BIA dismissed the appeal on May 22, 2006, on the merits. It found no
error in the IJ’s “conclusion that the respondent’s speculative future eligibility for
adjustment of status fails to establish good cause for a continuance.” Id. at 191.
In this court, the attorney followed a similar pattern: he filed a petition for
review without submitting a brief. Camberos’ petition for review was dismissed
for lack of prosecution on November 16, 2006. The court denied a new attorney’s
motion to revive the petition for review.
On January 24, 2007, eight months after the BIA’s final decision,
Camberos filed an untimely motion to reopen on the ground that he had received
ineffective assistance from his previous counsel and he also requested equitable
tolling of the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2) (requiring a motion to
reopen removal proceedings to be filed within 90 days after the final
administrative decision). Camberos’ motion mentioned counsel’s failure to
pursue I-360 relief and also referred to Form EOIR-42B, which is an application
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pursuant to the battered-spouse provision of 8 U.S.C. § 1229b(b)(2) (allowing for
discretionary cancellation of removal if the alien establishes battering or extreme
cruelty, physical presence in the United States for at least three years, good moral
character, and extreme hardship arising from removal to the alien or a family
member who is a citizen or lawful resident).
Nowhere in his motion to reopen did Camberos provide substantial factual
support for his claimed entitlement to 42B relief or provide meaningful legal
argument. Although the motion described his former wife’s post-separation drug
problems, her neglect of her children, and her misrepresentation of a child’s
paternity, it did not demonstrate extreme cruelty or explain how his removal
would result in extreme hardship to himself or any identified family member.
The BIA first determined that the attorney proceeded properly when
Camberos’ marriage mooted his Form I-360 application. Further, no prejudice
flowed from counsel’s failure to file a BIA brief because the affirmance of the
removal order addressed the issues raised in the notice of appeal. Finally,
counsel’s failure to brief the petition for review in this court fell outside BIA
jurisdiction. The BIA did not specifically discuss the lack of a Form EOIR-42B
application, but commented generally that “the respondent, who has been the
subject of removal proceedings for over six years, has yet to establish his prima
facie eligibility for relief from removal.” Admin. R. at 3. Based on its
conclusion that Camberos “had failed to establish that his prior attorney’s conduct
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prejudiced his case,” the BIA denied the motion to reopen. Id. Camberos
petitioned for review in this court, arguing that he was prejudiced by his
attorney’s failure to apply for 42B relief and that the BIA’s omission of a specific
42B discussion was an “egregious mistake.” Pet’r Br. at 23.
II.
This court has jurisdiction to review the BIA’s denial of a motion to
reopen. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004). We
review the matter for an abuse of discretion, id. at 1362, and “will reverse only if
the BIA’s ‘decision provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.’” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.
2005) (quoting Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002)).
“Because deportation proceedings are civil in nature, a claim of ineffective
assistance of counsel in a deportation proceeding may be based only on the Fifth
Amendment guarantee of due process.” Akinwunmi v. INS, 194 F.3d 1340, 1341
n.2 (10th Cir. 1999) (per curiam). The due-process analysis requires a showing
that the “counsel’s ineffective assistance so prejudiced [the alien] that the
proceeding was fundamentally unfair.” Id.
In its decision, the BIA addressed the controlling issue: whether the case
presented ineffective-assistance-of-counsel claims warranting equitable tolling.
See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002) (requiring the BIA to
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examine motions to reopen based on ineffective assistance of counsel to
determine propriety of equitable tolling). After sorting through Camberos’
argument, the BIA denied the motion to reopen for lack of a showing of prejudice
flowing from the allegedly ineffective assistance.
Contrary to Camberos’ contentions, the BIA did not abuse its discretion in
omitting a detailed discussion of 42B relief. A motion to reopen in the BIA must
“state the new facts that will be proven at a hearing to be held if the motion is
granted” and should be supported by affidavits, along with “other evidentiary
material.” 8 C.F.R. §§ 1003.2(c), 1003.23(b)(3); cf. Sanchez v. Keisler, 505 F.3d
641, 648 (7th Cir. 2007) (granting petition for review of denial of motion to
reopen where the motion provided “extensive evidence” of spousal abuse).
Camberos’ motion contained only a passing mention of 42B relief and failed to
provide evidentiary support for such a claim.
The BIA’s order provided a rational explanation for its decision and
followed its established policies. We conclude that it did not abuse its discretion
and therefore we DENY the petition for review. Petitioner’s motion to proceed in
forma pauperis is granted.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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