Berzosa-Flores v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk

No. 04-61168

Summary Calendar
____________________

JOSE BERZOSA-FLORES

Petitioner

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

Respondent

_________________________________________________________________

Petition for Review of an Order of the
Board of Immigration Appeals
No. A77 739 864
_________________________________________________________________

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

Petitioner Jose Berzosa-Flores (“Berzosa”) petitions the

court for review of a final order of the Board of Immigration

Appeals (“BIA”) denying his motion to reopen his removal

proceedings to present new evidence in support of his application

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

-1-
for cancellation of removal and to assert a due process challenge

to his initial hearing before the immigration judge for

ineffective assistance of counsel. In addition to filing a brief

on the merits, the Attorney General submitted a motion to strike

new evidence submitted with Berzosa’s brief, which has been

carried with the instant appeal. For the following reasons, we

GRANT the Attorney General’s motion to strike the new evidence

submitted with Berzosa’s brief and DISMISS Berzosa’s petition for

review for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Berzosa, a native and citizen of Mexico, illegally entered

El Paso, Texas without being admitted or paroled on or about

October 28, 1989. The Immigration and Naturalization Service

(“INS”)1 initiated removal proceedings against Berzosa by filing

a Notice To Appear (“NTA”) in the El Paso Immigration Court on

October 19, 2000. The NTA charged Berzosa with removability as

an alien present in the United States without being admitted or

paroled under the Immigration and Nationality Act (“INA”)

1
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
Stat. 2135 (2002). The Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security assumed the
INS’s detention, removal, enforcement, and investigative
functions. See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th
Cir. 2004). Because the events in this case began before the
reorganization, we will continue to refer to the INS in this
opinion to avoid confusion.

-2-
§ 212(a)(6)(A)(i). 8 U.S.C. § 1182(a)(6)(A)(i) (2000). On

February 13, 2001, Berzosa appeared before the Immigration Judge

(“IJ”) with Marcela Garcia Moreno, an accredited representative

from the United Neighborhood Organization but not a licensed

attorney. At the hearing, Berzosa admitted the factual

allegations contained in his NTA and conceded removability on

those grounds. He sought a cancellation of removal under INA

§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1),2 or, in the alternative,

voluntary departure.

Following a hearing on the merits on December 13, 2002, the

IJ issued a written decision denying Berzosa’s application for

cancellation of removal but granting his request for voluntary

2
Section 1229b(b)(1) provides:

The Attorney General may cancel removal of, and
adjust to the status of an alien lawfully admitted
for permanent residence, an alien who is
inadmissible or deportable from the United States
if the alien–-
(A) has been physically present in the United
States for a continuous period of not less
than 10 years immediately preceding the date
of such application;
(B) has been a person of good moral character
during such period;
(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3)
of this title (except in a case described in
section 1227(a)(7) of this title where the
Attorney General exercises discretion to grant
a waiver); and
(D) establishes that removal would result in
exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien
lawfully admitted for permanent residence.

-3-
departure. Specifically, the IJ found that the inconsistencies

in Berzosa’s testimony failed to establish the necessary

continuous physical presence under § 1229b(b)(1)(A).3 Moreover,

the IJ held that the medical condition of Berzosa’s twin

daughters, Joanna and Jacqueline, who are both United States

citizens, did not rise to the level of “exceptional and extremely

unusual hardship” necessary to garner relief under §

1229b(b)(1)(D). On January 14, 2003, Berzosa appealed the IJ’s

decision to the BIA.

The BIA dismissed the appeal on May 3, 2004, expressly

affirming and adopting the IJ’s determination that Berzosa failed

to meet the statutory requirements for cancellation of removal,

specifically the physical presence and hardship requirements

under § 1229b(b)(1). On June 30, 2004, Berzosa filed a motion to

reopen his removal proceedings with the BIA to consider new

evidence in support of his original application for cancellation

of removal. He also asserted that his due process rights were

violated on account of ineffective assistance of counsel at the

3
The IJ found the discrepancy between Berzosa’s live
testimony and the documentary evidence submitted to the court
concerning the school enrollment of one of his non-citizen
daughters, Blanca, to be particularly damaging to Berzosa’s
credibility. Although Berzosa maintained that he had been
continually present in the United States beginning in 1989, the
enrollment and medical records indicated that Blanca had not
transferred to a school in the United States until December 12,
1991. If Berzosa did not arrive in the United States until 1991,
he would not meet the requisite ten-year period of continuous
presence under § 1229b(b)(1)(A).

-4-
first hearing. The BIA denied Berzosa’s motion to reopen on

November 30, 2004, finding (1) that the newly submitted evidence

was not previously unavailable as required by 8 C.F.R. §

1003.2(c);4 (2) that Berzosa failed to comply with the

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.

1988) in presenting his ineffective assistance of counsel claim

by failing to submit evidence that he had filed a bar complaint

against his prior counsel; and (3) that Berzosa had failed to

prove any prejudice resulting from his former counsel’s

performance. On December 27, 2004, Berzosa filed a timely

petition for review in this court.

II. DISCUSSION

A. Motion to Strike New Evidence

Ordinarily, this court examines a claim of ineffective

assistance of counsel as a basis to support a motion to reopen

under Matter of Lozada, 19 I & N Dec. 637, 639 (B.I.A. 1988),

aff’d, 857 F.2d 10 (1st Cir. 1988). In Goonsuwan v. Ashcroft,

252 F.3d 383, 389 (5th Cir. 2001), we stated that a petitioner,

who is seeking to reopen or reconsider his removal proceedings to

raise a claim of ineffective assistance of counsel, must provide:

1) an affidavit by the alien setting forth the relevant
facts, including the agreement with counsel regarding the

4
The BIA cannot grant a motion to reopen proceedings
unless it finds the additional evidence presented “is material
and was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

-5-
 alien’s representation; 2) evidence that counsel was
informed of the allegations and allowed to respond,
including any response; and 3) an indication that,
assuming that a violation of “ethical or legal
responsibilities” was claimed, a complaint has been
lodged with the relevant disciplinary authorities, or an
adequate explanation for the failure to file such a
complaint.

Id. The parties do not dispute, and the record demonstrates,

that Berzosa’s motion to reopen met the first and second prongs

of the Lozada inquiry. With respect to the third prong, however,

the BIA determined that the record did not contain evidence that

a complaint had been lodged with the relevant disciplinary

authorities, and Berzosa failed to provide a sufficient

explanation for his failure to do so. Indeed, our review of the

record confirms that Berzosa’s first effort to meet the third

prong of Lozada did not occur until he filed the instant appeal

and attached a letter of complaint to the Executive Office for

Immigration Review (“EOIR”) dated June 24, 2002 stating his

grievance about Moreno’s representation.

On May 20, 2005, the Attorney General filed a motion to

strike the new evidence submitted with Berzosa’s brief to this

court.5 More specifically, Berzosa’s brief attached two

additional pieces of evidence not found within the administrative

record: (1) the letter of complaint dated June 24, 2004 from

5
On May 31, 2005, this court ordered that the motion be
carried with the instant appeal. Berzosa-Flores v. Gonzales, No.
No. 04-61168 (5th Cir. May 31, 2005) (unpublished order).
Berzosa did not file a response to this motion or provide any
justification for including the new evidence in his brief.

-6-
Berzosa to the EOIR concerning Moreno’s allegedly deficient

representation in his case; and (2) school records of Joanna and

Jacqueline discussing their special education needs.

The Attorney General correctly noted that additional

evidence outside of the administrative record cannot be

considered in this appeal. See 8 U.S.C. § 1252(b)(4)(A)

(providing that on review of orders of removal “the court of

appeals shall decide the petition only on the administrative

record on which the order of removal is based”) (emphasis added);

Goonsuwan, 252 F.3d at 390 n.15 (“It is a bedrock principle of

judicial review that a court reviewing an agency decision should

not go outside of the administrative record.”). Accordingly, we

grant the motion and confine our review to the administrative

record.

B. Jurisdiction Under 8 U.S.C. § 1252(a)(2)(B)(i)

As a preliminary matter, the Attorney General contends that

this court lacks jurisdiction to review the BIA’s denial of

Berzosa’s motion to reopen under 8 U.S.C. § 1252(a)(2)(B)(i),

which bars judicial review of “any judgment regarding the

granting of relief under section 1182(h), 1182(i), 1229b, 1229c,

or 1255 of this title.”6 Because Berzosa attempted to reopen his

6
Aside from a brief jurisdictional statement at the
beginning of his brief, Berzosa does not address the initial
question of this court’s jurisdiction to hear the appeal. Before
reaching the merits of his claim that he was deprived of due
process as a result of ineffective assistance of counsel, we must
first determine whether jurisdiction lies in this case. See

-7-
removal proceedings to challenge the IJ’s determination that he

was not eligible for the discretionary relief under

§ 1229b(b)(1), the jurisdictional bar of § 1252(a)(2)(B)(i)

applies. See Rueda v. Ashcroft, 380 F.3d 381, 381 (5th Cir.

2004) (dismissing petition for review of hardship determination

under § 1229(b)(1)(D) for lack of jurisdiction). Even though

Berzosa raises his challenge through a motion to reopen his

proceedings rather than a direct challenge to the BIA’s

affirmance of the IJ’s merits determination, this circuit has

held that the jurisdiction-stripping provisions of § 1252(a)(2)

apply with equal force in this context. Assaad v. Ashcroft, 378

F.3d 471, 474 (5th Cir. 2004) (“[J]ust as our power to review a

final order is circumscribed by § 1252(a)(2)’s various

jurisdiction-stripping provisions, our ‘jurisdiction to entertain

an attack on that order mounted through filing of a motion to

reopen’ is equally curtailed.”) (quoting Patel v. United States,

334 F.3d 1259, 1262 (11th Cir. 2003)). Accordingly, we agree

with the Attorney General that Berzosa cannot “manufacture

jurisdiction simply by petitioning this court to review the BIA’s

denial of his motion to reopen.” Id. at 475.

Although the holding in Rueda clearly precludes review of a

discretionary hardship determination under § 1229b(b)(1)(D),

Nguyen v. Bureau of Immigration and Customs Enforcement, 400 F.3d
255, 260 (5th Cir. 2005) (noting that “the question of a federal
court’s subject matter jurisdiction may be properly raised at any
stage in litigation, including for the first time on appeal”).

-8-
Berzosa also challenges the IJ’s finding that he failed to meet

the physical presence requirement under § 1229b(b)(1)(A). This

circuit has not extended the reach of § 1252(a)(2)(B)’s

jurisdictional bar to the determination of whether a petitioner

has been continually present for a period of not less than ten

years. See Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th

Cir. 2003) (describing the continuous physical presence

requirement as “a factual determination which is subject to

appellate review”); Gonzalez-Torres v. I.N.S, 213 F.3d 899, 901

(5th Cir. 2000). We review the IJ’s factual conclusion on the

issue of whether Berzosa established ten years of continuous

presence for substantial evidence. Garcia-Melendez, 351 F.3d at

661. Because all four requirements of § 1229b(b)(1) must be

satisfied for cancellation of removal, however, our lack of

jurisdiction to review the IJ’s determination on hardship is

fatal to Berzosa’s claim. Therefore, it would be a hollow act

for us to separately consider the IJ’s finding on continuous

presence.7

7
Although we need not reach the issue, we note that the
IJ’s determinations with respect to Berzosa’s claims of
continuous presence and “exceptional and extremely unusual
hardship” were supported by substantial evidence. The record
amply demonstrates the gaps in documentary proof and questionable
credibility of Berzosa’s statements during the hearing. We
afford “great deference to an immigration judge’s decisions
concerning an alien’s credibility.” Efe v. Ashcroft, 293 F.3d
899, 903 (5th Cir. 2002) (citing Chun v. I.N.S., 40 F.3d 76, 78
(5th Cir. 1994)). Despite several opportunities to explain the
discrepancies in his testimony, Berzosa failed to meet his burden
of establishing continuous presence. This court has been

-9-
C. Ineffective Assistance of Counsel

Although this court lacks jurisdiction to review the BIA’s

affirmance of the IJ’s holding with respect to discretionary

relief under § 1229b(b)(1), we retain jurisdiction over “any

substantial constitutional claims.” See Balogun v. Ashcroft, 270

F.3d 274, 278 n.11 (5th Cir. 2001). As such, before we can

dismiss this appeal for lack of jurisdiction, we must consider

whether Berzosa’s claim of ineffective assistance of counsel

rises to the level of a “substantial constitutional violation.”

This court has previously found that ineffective assistance

of counsel “may implicate the Fifth Amendment’s due process

guarantee if the ‘representation afforded [the alien] . . . was

so deficient as to impinge upon the fundamental fairness of the

hearing.’” Assaad, 378 F.3d at 475 (quoting Paul v. I.N.S., 521

F.2d 194, 198 (5th Cir. 1975)); Goonsuwan, 252 F.3d at 385 n.2

(noting that ineffective assistance of counsel offends due

process when “as a result, the alien suffered substantial

prejudice”). Berzosa contends that Moreno’s representation was

deficient in two respects, both of which are directly related to

his application for cancellation of removal under § 1229b(b)(1).

First, Berzosa claims that Moreno failed to adequately prepare

and present his case to the IJ, especially with respect to her

“emphatically clear” that it “‘will not review decisions turning
purely on the immigration judge’s assessment of the alien
petitioner’s credibility.’” Chun, 40 F.3d at 78 (citing Mantell
v. I.N.S., 798 F.2d 124, 127 (5th Cir. 1986)).

-10-
purported inability to establish Berzosa’s physical presence

requirement under § 1229b(b)(1)(A). Second, Berzosa claims that

the ineffective assistance of Moreno impaired his ability to

establish the “exceptional and extremely unusual” hardship to his

citizen daughters that would be necessary to secure discretionary

relief under § 1229b(b)(1)(D).

Because Berzosa’s ineffective assistance of counsel claim

cannot be disentangled from his effort to secure discretionary

relief, we find no deprivation of a protected liberty interest

that would give rise to a due process violation. Assaad, 378

F.3d at 475 (finding that a “motion to reopen does not allege a

violation of [the petitioner’s] Fifth Amendment right to due

process because ‘the failure to receive relief that is purely

discretionary in nature does not amount to a deprivation of a

liberty interest’”) (quoting Mejia Rodriguez v. Reno, 178 F.3d

1139, 1146 (11th Cir. 1999)). Without question, the

discretionary cancellation of removal under § 1229b is expressly

subject to the § 1252(a)(2)(B)(i) jurisdictional bar. See

Garcia-Melendez, 351 F.3d at 661. Therefore, Berzosa’s effort to

circumvent the jurisdictional defect in his petition for review

through a motion to reopen for ineffective assistance of counsel

is ultimately unavailing.

III. CONCLUSION

For the foregoing reasons, we hereby GRANT the Attorney

-11-
General’s motion to strike the new evidence submitted with

Berzosa’s brief and DISMISS Berzosa’s petition for review for

lack of jurisdiction.

-12-