[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16632 October 14, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA Agency Nos. A78-580-172, A78-580-173
ROBERTO SALES LUIS,
ROBERTO SALES PEREZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 14, 2005)
Before ANDERSON, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Roberto Sales-Luis and his minor child, Roberto Sales-Perez, petition for
review of the Board of Immigration Appeals’ (BIA’s) decision, dismissing their
appeal of the Immigration Judge’s (IJ’s) removal order. Petitioners contend the
BIA (1) abused its discretion by dismissing Petitioners’ appeal of the IJ’s denial of
their motion for a continuance of their removal proceedings, (2) erred by
dismissing Petitioners’ ineffective assistance of counsel claim, and (3) erred by
dismissing Petitioners’ claim the IJ erroneously failed to consider their request for
voluntary departure as one made prior to the conclusion of the proceedings. We
deny their petition.
I. BACKGROUND
Sales-Luis and Sales-Perez, both Guatemalan citizens, entered the United
States at different times between December 1999 and January 2000. In October
2000, Sales-Luis and Sales-Perez were issued Notices to Appear (NA), alleging
they were subject to removal because they had not been admitted or paroled into
the United States after inspection by an Immigration Officer. At a preliminary
hearing on December 27, 2000, an IJ–via an official interpreter from the
immigration court–informed Sales-Luis he had a right to an attorney. The IJ
indicated he was resetting the case in order to give Sales-Luis several months in
which to find legal assistance. At the next hearing, on May 2, 2001, Sales-Luis
again appeared without an attorney, and the IJ stated Sales-Luis would have to
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represent himself and his son. Sales-Luis admitted the allegations against him and
his son, and conceded removability. The IJ set a hearing date and reminded Sales-
Luis he was “still welcome to get an attorney.”
On February 14, 2002, before a different IJ, Petitioners appeared with their
newly acquired attorney, Jack Phillips. Phillips filed a motion for continuance,
indicating Petitioners had only recently retained him and requesting additional
preparation time, which was granted. The next hearing took place on March 28,
2002, at which time Phillips filed another motion for continuance because he had
not received documents from a Freedom of Information Act (FOIA) request to the
Immigration and Naturalization Service (INS). One day prior to the next hearing,
which took place on April 11, 2003, Phillips filed another motion for a
continuance, which the court denied. Due to a scheduling error on the
Government’s part, however, the Government’s trial attorney was not available for
the hearing; accordingly, the IJ reset the hearing. Phillips stated he “had plans to
be out of the country during that time” but would try to find “substitute counsel.”
At the next hearing, on June 24, 2003, Sales-Luis appeared without Phillips.
Earlier that morning, the court had received an emergency motion from Phillips,
asking to continue the hearing because he suffered from chronic sleep disorder,
anxiety, and depression. The IJ noted the letter from Phillips’ doctor submitted in
support of his motion was dated June 11, 2003, and, consequently, denied Phillips’
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motion as untimely. The IJ further stated that, according to Phillips’ motion,
Phillips had suffered from his medical condition since childhood, but failed to
bring this information to the court’s attention in the “close to a year and a half” he
represented Petitioners. After the IJ informed Sales-Luis that Phillips had filed a
motion indicating he could not represent Sales-Luis due to his health, Sales-Luis
stated it was “fine because that’s what [Phillips had] been using in order to cancel
all his appointments with [Sales-Luis] and then saying that he would see [Sales-
Luis] in two or three months down the road.” Sales-Luis then proceeded to testify
about the grounds underlying his application for political asylum.
At the completion of Sales-Luis’s testimony, the IJ reviewed the record and
determined Sales-Luis was not eligible for voluntary departure, as he lacked the
necessary physical presence in the United States. The IJ then issued an oral
decision, denying Sales-Luis’s application for asylum, 8 U.S.C. § 1158, and
withholding of removal under the Immigration and Nationality Act, 8 U.S.C.
§ 1231(b)(3)(A), and the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), 8 C.F.R.
§ 208.16(c).
Sales-Luis appealed the IJ’s decision to the BIA, which dismissed
Petitioners’ appeal, finding the Petitioners failed to “put forth any argument on
appeal that either the [IJ’s] or [Phillips’] conduct caused them actual prejudice and
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harm which would have materially affected the outcome of their requests for
relief.”
II. DISCUSSION
A. Motion for a Continuance
Petitioners argue the IJ violated their due process rights by denying their
motion for a continuance in order for them to obtain new counsel when their
attorney failed to appear for their June 24, 2003, removal hearing. According to
Petitioners, “they did not have prior notice that their counsel was not going to
appear, [and] it was likewise impossible for them to have secured other counsel to
represent them that day.” Citing Montilla v. INS, 926 F.2d 162 (2d Cir. 1991),
Petitioners contend that, because the INS failed to adhere to its own regulations
regarding the right to counsel in a deportation hearing, they are not required to
make a showing of prejudice.
We review an IJ’s denial of a motion for a continuance for an abuse of
discretion. See Olvera v. INS, 504 F.2d 1372, 1374 (5th Cir. 1974); see also Al
Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004). There is no Sixth
Amendment right to counsel in deportation proceedings, and aliens only enjoy the
right to effective assistance of counsel pursuant to the Fifth Amendment Due
Process Clause. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999).
Due process, however, does not automatically mean a right to counsel.
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Prichard-Ciriza v. INS, 978 F.2d 219, 222 (5th Cir. 1992). To prevail on a due
process challenge to a removal proceeding, the alien must demonstrate the alleged
misconduct resulted in “substantial prejudice.” Mullen-Cofee v. INS, 976 F.2d
1375, 1380 (11th Cir. 1992).
The BIA did not abuse its discretion by dismissing Petitioners’ appeal of the
IJ’s denial of their motion for a continuance. Contrary to Petitioners’ contentions,
the INS did not fail to adhere to its own regulations, as Petitioners were given
notice of their right to counsel and afforded the privilege of being represented by
that counsel. See 8 U.S.C. §§ 1229(a)(1)(E), (b)(4)(A); 8 C.F.R. §§ 1003.16(b),
1240.10(a)(1). The IJ (1) previously explained to Sales-Luis his right to counsel,
(2) twice continued the hearing in order for Sales-Luis to retain counsel,
(3) informed Sales-Luis that, if he appeared without counsel, he would have to “go
forward and speak for [him]self,” and (4) again continued the hearing in order for
Sales-Luis’s counsel adequately to prepare. Accordingly, Petitioners’ contention
they need not show substantial prejudice fails. Because Petitioners fail to allege
how they were prejudiced by the denial of their motion for a continuance, we deny
the petition as to this motion.
B. Ineffective Assistance of Counsel Claim
Petitioners next argue the BIA erred by denying their ineffective assistance
of counsel claim, as “[t]here can be no greater example of ineffective assistance of
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counsel [than] the present situation in which the Petitioners’ former counsel
abandoned them on the day of their individual hearing.” Moreover, Petitioners
argue, the IJ erred by (1) denying Phillips’ emergency motion for a continuance,
(2) denying Sales-Luis’s oral motion for a continuance in order for him to secure
new counsel, (3) not allowing Sales-Luis to confer with an attorney regarding
voluntary departure, and (4) not allowing Petitioners “an opportunity to present
their case,” including allowing Sales-Luis to “make a statement on his or his son’s
behalf, call other witnesses, or introduce evidence.”
We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341 (11th Cir. 2003). “[T]o establish the ineffective assistance of
counsel in the context of a deportation hearing, an alien must establish his or her
counsel’s performance was deficient to the point that it impinged the ‘fundamental
fairness’ of the hearing.” Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1221 (11th Cir.
2003) (internal quotations and citation omitted). “Prejudice exists when the
performance of counsel is so inadequate that there is a reasonable probability that
but for the attorney’s error, the outcome of the proceedings would have been
different.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).
Petitioners have failed to demonstrate what prejudice they suffered on
account of Phillips’ ineffective assistance of counsel. Aside from speculating as to
how a competent attorney might have conducted himself at the hearing, Petitioners
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fail to set forth how their proceedings would have been different had their counsel
been present, including what, if any, additional (1) evidence would have been
presented, (2) testimony would have been offered, and (3) witnesses would have
testified. Moreover, Petitioners fail to explain how any such evidence would have
changed the outcome of the proceedings. Consequently, Petitioners failed to
establish their proceedings would have differed but for their counsel’s deficient
performance. Their ineffective assistance of counsel claim therefore fails, and we
deny their petition as to this issue.
C. Request for Voluntary Departure
Finally, Petitioners argue the IJ (1) ignored their request for voluntary
departure, and (2) failed to explain, and even confused, the distinction between
requesting voluntary departure “during proceedings as opposed to requesting
[v]oluntary [d]eparture at the conclusion of proceedings.” Consequently,
Petitioners argue, they were unable to make an “informed decision” regarding
whether to pursue voluntary departure, especially since they were without counsel.
The Immigration and Naturalization Act distinguishes between an IJ
granting voluntary departure “[p]rior to completion of [the] removal proceedings,”
8 C.F.R. § 1240.26(b), and “[a]t the conclusion of the removal proceedings,” 8
C.F.R. § 1240.26(c). To obtain a grant of voluntary departure prior to the
conclusion of the proceedings, an alien must “[m]ake[] such request prior to or at
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the master calendar hearing at which the case is initially calendared for a merits
hearing.” 8 C.F.R. § 1240.26(b)(1)(i)(A). Alternatively, the Government’s
counsel may stipulate to a grant of voluntary departure “at any time prior to the
completion of removal proceedings.” 8 C.F.R. § 1240.26(b)(2). Granting of
voluntary departure at the conclusion of the proceedings, on the other hand,
requires the alien to have been “physically present in the United States for a period
of at least one year preceding the date the Notice to Appear was served.” 8 C.F.R.
§ 1240.26(c)(1)(i).
According to 8 U.S.C. § 1229c(f), we lack jurisdiction “over an appeal from
denial of a request for an order of voluntary departure under subsection (b) of this
section.” The “subsection (b)” to which § 1229c(f) refers pertains to requests for
voluntary departure made “[a]t conclusion of proceedings.” See 8 U.S.C.
§ 1229c(b). Here, Petitioners do not ask us to review the denial of a request for
voluntary departure made at the conclusion of the proceedings. Rather,
Petitioners’ assert the IJ erroneously thwarted their desire to obtain voluntary
departure prior to completion of the removal proceedings. Therefore, we have
jurisdiction over Petitioners’ claim.
Regardless, Petitioners’ argument fails. First, Petitioners’ failure to request
voluntary departure at the master calendar hearing on May 2, 2001, renders
untimely their claim for voluntary departure under 8 C.F.R. § 1240.26(b)(1)(i)(A).
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Second, Petitioners’ contention they were “uninformed” and “confused” regarding
voluntary departure lacks merit, because they chose to appear at the master
calendar hearing without counsel after being informed of their right to counsel at
their initial hearing and receiving five months to retain counsel. Furthermore,
Petitioners cite no authority requiring an IJ to inquire sua sponte whether the
government would be willing to stipulate to voluntary departure under
§ 1240.26(b)(2). The IJ did not err by refusing to consider the petitioners’ request
for voluntary departure as one made prior to the completion of the removal
proceedings, and we deny their petition as to this issue.
III. CONCLUSION
Petitioners (1) failed to allege how they were prejudiced by the denial of
their motion for a continuance, (2) failed to establish their proceedings would have
differed but for their counsel’s deficient performance, and (3) failed to request
voluntary departure at the master calendar hearing. Accordingly, all three of their
claims lack merit and we deny their petition.
PETITION DENIED.
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