Lopez v. Mukasey

FILED
United States Court of Appeals
Tenth Circuit

August 7, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MELVIN ROLANDO LOPEZ,

Petitioner,

v. No. 07-9549
(Petition for Review)
MICHAEL B. MUKASEY, United
States Attorney General,

Respondent.

ORDER AND JUDGMENT *

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

Melvin Rolando Lopez, a citizen and native of Guatemala, seeks review of

the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen and its

failure to extend his voluntary departure period. The BIA had previously denied

cancellation of removal, and Lopez moved to reopen his case on two grounds: (1)

new evidence that his U.S. citizen son would suffer extreme hardship if Lopez

were removed, and (2) ineffective assistance of counsel in his removal

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
proceedings because his representative failed to argue that he was eligible for

crosschargeability with the visa petition of his wife, a citizen and native of

Mexico. 1 The BIA found that the new evidence was not likely to change the

outcome of his case, and that his representative’s alleged error was not prejudicial

because crosschargeability was unavailable in his case. Accordingly, it denied his

motion to reopen and his request for a stay of removal.

Lopez petitioned this court for review, and we stayed his removal pending

our decision. His petition claims that the BIA: (1) applied the wrong standard of

review to his hardship claim, (2) erroneously interpreted the law in determining

that crosschargeability did not apply in his case, and (3) violated his due process

rights by not ruling on his motion for extension of voluntary departure. In

addition, he moves for remand to the BIA so that he may withdraw his prior

request for voluntary departure, pursuant to Dada v. Mukasey, 128 S. Ct. 2307

(2008). 2 Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we deny the petition

for review and deny the motion for remand.

1
Crosschargeability refers to the practice of allowing spouses from two
different countries to be treated as natives of the same country for purposes of
visa eligibility. See 8 U.S.C. § 1152(b)(2). Because visas might become
available at different times for each spouse, depending on their country of origin,
this practice prevents spouses from being separated by granting them visas at the
same time. See id.; Matter of Ascher, 14 I. & N. 271, 276 (1973).
2
Lopez had argued in his briefs and at oral argument that his motion to
reopen should have automatically tolled the period for voluntary departure, but in
his motion for remand, he recognizes that Dada forecloses this argument. See 128
S. Ct. at 2311.

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 I

Lopez entered the United States without inspection in 1989, at the age of

13. He applied for asylum in 1993, and his application remained pending for over

a decade. During that time, he met Sandra Cuellar, a citizen of Mexico, and the

couple married in February 2001. Both their son Jacob, born in 2002, and their

daughter, born in 2007, are United States citizens.

Before she married Lopez, Cuellar had received an approved I-130 visa

petition with a priority date of July 10, 1995. With an approved visa petition,

Cuellar may apply to adjust her status to lawful permanent resident as soon as her

priority date becomes current. See 8 C.F.R. § 245.1(a), (g)(1). Whether a

priority date is “current” depends on the immigrant’s preference category and

country of chargeability. As the married daughter of a United States citizen,

Cuellar is in the third preference category for family-sponsored visas. See 8

U.S.C. § 1153(a)(3). Because she was born in Mexico, her petition is chargeable

to Mexico. § 1152(b). In April 2001, after her marriage to Lopez, Cuellar’s

priority date briefly became current and she applied for an adjustment of status.

See U.S. Dep’t of State, Bureau of Consular Affairs, Visa Bulletin, Apr. 2001.

But before her application was processed, the current priority date was changed to

an earlier date, making her not yet eligible for adjustment of status. See U.S.

Dep’t of State, Bureau of Consular Affairs, Visa Bulletin, July 2001. Her

application remains pending until her priority date becomes current again.

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 In 2005, Lopez’s asylum petition was denied, and his case was referred to

an immigration judge (“IJ”) for removal proceedings. Lopez retained Elizabeth

Coker as his nonattorney representative and filed for cancellation of removal

based on hardship to his son Jacob if Lopez were removed. At his hearing before

the IJ, Coker and the IJ discussed Cuellar’s approved visa petition. Coker stated

that Cuellar’s priority date meant that she was not yet eligible for an adjustment

of status. 3 Coker never raised the issue of crosschargeability. Lopez testified at

the hearing and indicated that Jacob was in good health. Based on the evidence

presented, the IJ concluded that Lopez had failed to show “exceptional and

extremely unusual hardship” to his son, which was the only asserted basis for

relief from removal. Accordingly, the IJ denied Lopez’s request for cancellation

of removal, but granted his request to voluntarily depart the country.

With Coker as his representative, Lopez appealed the IJ’s decision to the

BIA, again arguing hardship to his son as his only ground for relief. On

December 21, 2006, the BIA summarily denied his appeal and allowed Lopez

until February 19, 2007, to voluntarily depart.

3
At the time of the hearing, the Department of State was processing
applications for Mexican citizens in the third family-preference category with
priority dates of October 8, 1994, and earlier. See U.S. Dep’t of State, Bureau of
Consular Affairs, Visa Bulletin, Jan. 2006. Because Guatemala is not an
oversubscribed chargeability area, for Guatemalans in that preference category,
the current priority date was July 1, 1998. Id.

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 Lopez retained legal counsel, and on January 30, 2007, he filed a motion to

reopen, a motion for stay of removal and extension of the voluntary departure

period, and a request to expedite the determination of all motions. In his motion

to reopen, Lopez asserted that since the denial of his appeal, Jacob had developed

a seizure disorder that substantially changed his medical needs. Lopez urged the

BIA to consider this new evidence of hardship. In addition, he contended that

Coker had been ineffective in failing to argue that Lopez’s wife was eligible for

an immediate adjustment of status under crosschargeability. According to Lopez,

because Cuellar was married to a Guatemalan native, she could benefit from the

priority date for Guatemalans, in which case the priority date on her petition was

current. Because Cuellar was eligible to adjust her status, Lopez argued that he

was entitled to relief from removal as her spouse.

The BIA denied Lopez’s motion to reopen and the motion for stay of

removal on June 11, 2007. In doing so, it concluded that, even in light of the new

evidence of Jacob’s medical problems, Lopez had failed to show that he was

likely to succeed on his hardship claim. It also found that he had not been

prejudiced by Coker’s alleged error because Cuellar and Lopez had not

simultaneously applied for visas or for admission to the United States. 4

Therefore, the petition was not crosschargeable to Lopez. The BIA did not rule

4
The BIA did find that Lopez had satisfied the procedural requirements of
In re Lozada, 19 I. & N. Dec. 637 (1988), for raising a claim of ineffective
assistance in a motion to reopen.

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on Lopez’s request for an extension of voluntary departure. Lopez now petitions

this court for review of the BIA’s June 11 order.

II

We have jurisdiction to review the denial of a motion to reopen, which we

consolidate with our review of the underlying order of removal. See Infanzon v.

Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004) (citing 8 U.S.C. § 1252(b)(6)).

We review the BIA’s denial of a motion to reopen for an abuse of discretion. Id.

at 1362. “The BIA abuses its discretion when its decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Id. (quotation

omitted).

With respect to the underlying order of removal, however, our jurisdiction

is limited. 8 U.S.C. § 1252(a)(2). Where the BIA denies discretionary relief

from removal because the petitioner’s circumstances do not constitute

“exceptional and extremely unusual” hardship, we lack jurisdiction over its

discretionary determination. §§ 1182 & 1252(a)(2)(B)(i); Morales Ventura v.

Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003). We may, however, exercise

jurisdiction over “constitutional claims or questions of law” raised by the

petitioner. § 1252(a)(2)(D); Vargas v. Dep’t of Homeland Security, 451 F.3d

1105, 1107 (10th Cir. 2006). Thus in the present case, we only consider whether

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the BIA abused its discretion in evaluating Lopez’s motion to reopen, and do not

address whether the particular facts of his case might justify discretionary relief.

A

Lopez asserts that the BIA applied an incorrect legal standard for

determining if his case should be reopened on the basis of hardship. He suggests

that the BIA expected him to prove extreme hardship. But on a motion to reopen,

he argues, he need only show “a reasonable likelihood” that a new hearing on

hardship would result in a ruling in his favor, relying on In re S-V-, 22 I. & N.

Dec. 1306, 1308 (2000).

In denying Lopez’s motion to reopen, the BIA found that Lopez had failed

to establish that the new evidence of his son’s illness “would likely change the

outcome of his case.” Among other things, the BIA noted that Lopez had not

presented any evidence, “other than his own speculation,” that his son would be

unable to attain adequate medical treatment in Guatemala. Lopez argues that the

BIA improperly expected him to “present his entire case,” rather than merely

show a likelihood of success sufficient to warrant an evidentiary hearing. Even

assuming that the BIA’s order can be characterized in this way, it acted within its

discretion in concluding that he had not sufficiently shown his entitlement to

discretionary relief.

There are at least three “independent” grounds on which the BIA may deny

a motion to reopen: (1) failure to establish a prima facie case for the relief

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sought; (2) failure to produce new evidence; and (3) where a movant seeks

discretionary relief, a determination that he is not entitled to the relief sought.

INS v. Doherty, 502 U.S. 314, 323 (1992). In cases involving discretionary

relief, the BIA “may leap ahead” over the prima facie case and new evidence

grounds and determine that, even if those grounds were met, the movant is not

entitled to relief. See INS v. Abudu, 485 U.S. 94, 105 (1988). In other words,

the BIA need not even consider whether the standard for prima facie case has

been met.

Lopez’s argument is based on the “reasonable likelihood of success”

standard, which relates only to whether the movant has established a prima facie

case. In re S-V-, 22 I. & N. Dec. at 1308 (when a movant seeks nondiscretionary

relief, he may establish a prima facie case for relief by showing a reasonable

likelihood “that the statutory requirements for relief have been satisfied”). But

here, the BIA decided Lopez’s case on the third ground. Under the standard

applicable to requests for discretionary relief, a movant bears a “heavy burden” of

establishing that “the new evidence offered would likely change the result in the

case.” Matter of Coelho, 20 I. & N. Dec. 464, 473 (1992) (citing Doherty, 502

U.S. at 322-24 and Abudu, 485 U.S. at 102-11). The BIA applied this correct

standard of review, and was not required to consider Lopez’s prima facie case

under the “reasonable likelihood” standard. Accordingly, it did not abuse its

discretion.

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 B

Lopez next claims that he suffered ineffective assistance of counsel in his

initial removal proceedings because his counsel failed to argue crosschargeability.

In a removal proceeding, a petitioner does not have Sixth Amendment right to

counsel, but he does have a Fifth Amendment right to due process. Michelson v.

INS, 897 F.2d 465, 467-68 (10th Cir. 1990). Thus a petitioner may raise an

ineffective assistance of counsel claim within the context of a denial of due

process. See id. at 468; see also Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2

(10th Cir. 1999) (per curiam). In order to prevail on his due process claim, Lopez

must establish that counsel’s alleged error was so detrimental as to cast doubt on

the fundamental fairness of the proceeding. See id. (citing Michelson, 897 F.2d at

468). We ask whether the representative’s error prejudiced Lopez’s case, such

that there is a reasonable likelihood that he would have obtained cancellation of

removal if his representative had properly raised and argued the

crosschargeability issue. See United States v. Aguire-Tello, 353 F.3d 1199, 1209

(10th Cir. 2004); see also Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir.

2008).

In this case, the BIA determined that Lopez failed to show prejudice in the

prior proceedings, because even if Lopez’s representative had raised

crosschargeability, it would not have altered the outcome of his case as Lopez

was ineligible for crosschargeability. Lopez urges that in fact he and his wife

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were eligible for crosschargeability at the time of his removal proceeding.

Crosschargeability would have allowed her to benefit from the earlier priority

date for Guatemalan natives. With an earlier priority date, Lopez argues that she

could have adjusted her status immediately. As the spouse of someone eligible

for adjustment of status, he in turn was entitled to relief from removal.

Under 8 U.S.C. § 1255(a), an alien may adjust her status to that of a lawful

permanent resident if she: (1) applies for an adjustment, (2) is eligible to receive

an immigrant visa, and (3) an immigrant visa is immediately available at the time

the application is filed. If an alien is entitled to adjust her status under this

section, then her “accompanying or following to join” spouse is also entitled to

the same status. § 1153(d). Cuellar met the second requirement of § 1255, in that

she was eligible to receive an I-130 immigrant visa, but her visa was not

immediately available at the time of Lopez’s hearing, nor is it available now.

Lopez urges that his wife should be treated as a native of Guatemala for the

purpose of determining whether a visa is immediately available for her. Under

§ 1152(b)(2), an alien may be treated as a native of the same country as her

spouse in determining visa eligibility. This section provides that:

if an alien is chargeable to a different foreign state from that of
his spouse, the foreign state to which such alien is chargeable
may, if necessary to prevent the separation of husband and
wife, be determined by the foreign state of the spouse he is
accompanying or following to join, if such spouse has received
or would be qualified for an immigrant visa and if immigration
charged to the foreign state to which such spouse has been or

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 would be chargeable has not reached a numerical level
established under subsection (a)(2) of this section for that
fiscal year . . . .

Id. Although the language of the statute contemplates chargeability running from

the visa-eligible spouse to the accompanying spouse, the doctrine of

crosschargeability allows it to run both ways. See U.S. Dep’t of State, 9 Foreign

Affairs Manual § 42.12, n.3.8. Lopez, as the “accompanying” spouse, seeks to

confer his preferential chargeability status on Cuellar, who would be qualified for

an immigrant visa.

In a factually similar case, the BIA addressed how a visa-eligible spouse

could benefit from the chargeability of his accompanying spouse. Ascher, 14 I. &

N. Dec. 271. Ascher was born in Ecuador and had married a woman from the

United Kingdom, and both Ascher and his wife were living in the United States as

nonimmigrants. Like Cuellar, Ascher had a pending family-preference petition

but was not yet admissible. He sought to benefit from his wife’s country of

origin, but she had not applied for a visa nor did it appear that she was eligible

for one. Id. at 275. The BIA determined that Ascher could benefit from his

wife’s nationality, but only if they simultaneously applied for visas and then

applied together for admission to the United States. Id. at 276; see also U.S.

Dep’t of State, 9 Foreign Affairs Manual § 42.12, n.3.8.

Applying the rule in Ascher to the present case, the BIA concluded that

Lopez was not eligible for relief under § 1152(b)(2). It found that Lopez failed to

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show that he and Cuellar had applied simultaneously for visas or for admission.

Moreover, when Cuellar applied to adjust her status in 2001, she expressly

asserted that Lopez was not applying with her.

Lopez counters that the relevant question is whether they simultaneously

received visas, not whether they applied together. Although Cuellar submitted an

application for adjustment of status, that application remains pending and she has

yet to receive a visa. Because Cuellar never received a visa, he argues, he is not

precluded from employing crosschargeability. In addition, he asserts that Cuellar

could always file a new application for adjustment of status listing him as her

accompanying spouse.

Contrary to Lopez’s arguments, we cannot conclude that the BIA’s decision

was so “devoid of any reasoning” or such an inexplicable departure from its own

precedent as to constitute an abuse of discretion. See Infanzon, 386 F.3d at 1362;

see also Omar v. Mukasey, 517 F.3d 647, 651 (2d Cir. 2008). Moreover, even if

Lopez’s wife could have withdrawn her application and reapplied simultaneously

with him, it is not clear that she would have done so. Because the BIA provided a

sufficient basis for its rejection of Lopez’s motion to reopen, it did not abuse its

discretion. We therefore deny his petition for relief on this basis.

C

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 Lopez claims that the BIA committed clear error in failing to rule on his

motion for an extension of voluntary departure. 5 He also moves to remand his

case to the BIA so that he may withdraw his request for voluntary departure nunc

pro tunc.

With respect to Lopez’s motion to extend the time for voluntary departure,

the BIA did not err in failing to rule on the motion because it lacked the authority

to do so. The authority to extend time for voluntary departure rests exclusively

with the district director for the Department of Homeland Security, the Deputy

Executive Associate Commissioner for Detention and Removal, and the Director

of the Office of Juvenile Affairs. See 8 C.F.R. § 1240.26(f). Although the BIA

may reinstate voluntary departure if the removal proceeding has been reopened

before expiration of the original period of voluntary departure, id., the BIA did

not reopen Lopez’s case. A reinstatement of voluntary departure was therefore

not appropriate.

As to his motion for remand, Lopez relies on the Supreme Court’s recent

decision in Dada. The Supreme Court held that although the filing of a motion to

reopen does not automatically toll the time for voluntary departure, an alien may

request withdrawal from his agreement to voluntarily depart before the end of the

5
Lopez does not explain why we should review this decision for “clear
error,” but because we conclude that the BIA did not err under any standard, we
do not address the standard of review.

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departure period. 128 S. Ct. at 2319-20. The alien must, however, request this

relief before the departure period expires. Id. at 2311.

In the present case, Lopez never sought to withdraw from voluntary

departure. He suggests that the BIA may enter an order nunc pro tunc, treating

his motion to withdraw filed now as having been filed before the expiration of the

departure period. However, he offers no authority allowing for this nunc pro tunc

procedure. Cf. Iouri v. Ashcroft, 464 F.3d 172, 182 (2d Cir. 2006). Because

Lopez has failed to show that he is entitled to these procedures on remand, we

deny the motion to remand.

III

We DENY Lopez’s petition and DENY his motion to remand to the BIA.

Petitioner’s motion to supplement the record is granted.

ENTERED FOR THE COURT

Carlos F. Lucero
Circuit Judge

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