NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3468
___________
ROSENDO RIVERA-RIVERA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order from The Department of
Homeland Security and the Executive Office for Immigration Review
(Agency No. A215-927-779)
Immigration Judge: Audra Behne
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 5, 2020
Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges
(Opinion filed: June 9, 2020)
___________
OPINION*
___________
PER CURIAM
Rosendo Rivera-Rivera seeks review of the final agency order authorizing his
removal from the United States. We will deny the petition for review.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I.
Rivera is a citizen of Mexico. He entered the United States without inspection or
parole and was found removable on that basis. See 8 U.S.C. § 1182(a)(6)(A)(i). To block
his removal, Rivera applied for cancellation of removal. A nonpermanent resident like
Rivera is statutorily eligible for such relief if he demonstrates: (A) physical presence in
the United States for at least the 10 years immediately preceding the date of his
application; (B) “good moral character” during that time; (C) a record free of certain
criminal convictions; and (D) “exceptional and unusual hardship” to a qualifying relative.
8 U.S.C. § 1229b(b)(1). Statutory eligibility, though, is necessary but not sufficient; an
immigration judge (IJ) may still deny cancellation of removal as a matter of agency
discretion. Cf. Barton v. Barr, 140 S. Ct. 1442, 1445 (2020).
The IJ in this case denied Rivera’s application for cancellation of removal.
Preliminarily, the IJ found that Rivera’s testimony lacked credibility. The IJ then
determined that Rivera failed to establish half of the statutory criteria and that, regardless,
he was undeserving of relief as a matter of discretion.
The Board of Immigration Appeals (BIA) affirmed, but on narrower grounds: it
concluded that Rivera failed to establish the requisite “hardship” under § 1229b(b)(1)(D).
In addition, the BIA rejected Rivera’s constitutional claim that his cancellation
application had been hampered by ineffective assistance of counsel, concluding that there
was “no clear error and no prejudice,” AR 4, and that the claim was procedurally
defective under Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Cf. Fadiga v.
Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (explaining that under Lozada an
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ineffective assistance of counsel claim must be accompanied by, inter alia, an affidavit
with relevant facts, and a demonstration that counsel was informed of the allegations and
given an opportunity to respond). This petition for review followed.
II.
We have jurisdiction to review final orders of removal and to consider any
colorable constitutional issues and other questions of law raised in Rivera’s opening
brief. See 8 U.S.C. § 1252(a)(1), (a)(2)(D); see also Calderon-Rosas v. Att’y Gen., No.
19-2332, --- F.3d ---, 2020 WL 1982207, at *5 (3d Cir. Apr. 27, 2020). Our standard of
review is de novo. See Tima v. Att’y Gen., 903 F.3d 272, 274 (3d Cir. 2018).
That said, we do not have jurisdiction to review a discretionary cancellation-of-
removal determination. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Evanson v. Att’y Gen.,
550 F.3d 284, 288 (3d Cir. 2008). And unless there is a dispute about whether the correct
standard was applied, we do not have jurisdiction to review a “hardship” determination
under § 1229b(b)(1)(D), specifically. See Radiowala v. Att’y Gen., 930 F.3d 577, 582 (3d
Cir. 2019). Accordingly, we lack jurisdiction to review Rivera’s challenge to the
agency’s determination under § 1229b(b)(1)(D), limited as it is to the evidentiary basis of
that determination. See Pet’r Br. 4-7.
III.
“When the BIA issues a separate opinion,” as it did here, “we review the BIA’s
disposition and look to the IJ’s ruling only insofar as the BIA defers to it.” Huang v.
Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). Thus, because the BIA did not defer to the
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IJ’s credibility and good moral character findings, or pass judgment on them at all,
Rivera’s challenges to those findings are inapt. See Pet’r Br. 7-13.
The only issue that is both germane to the BIA’s decision and jurisdictionally
susceptible of our review is the constitutional matter of allegedly deficient lawyering by
Rivera’s trial counsel. The BIA rejected this ‘Lozada claim’ in part because Rivera failed
to supply an affidavit “setting forth in detail the agreement between himself and his legal
representative and what actions were to be taken on his behalf.” AR 4. Rivera does not
challenge that dispositive procedural ruling, despite a colorable basis in which to do so.
See Lu v. Ashcroft, 259 F.3d 127, 132-35 (3d Cir. 2001); cf. AR 32-33 (affidavit of trial
counsel responding to allegations of ineffectiveness, attached to Rivera’s brief filed with
the BIA). So not only is the issue waived, see Garcia v. Att’y Gen., 665 F.3d 496, 502
(3d Cir. 2011), as amended (Jan. 13, 2012), but we could deny the petition for review
without further comment.
We have nevertheless considered the merits of Rivera’s Lozada claim, which
arises under the Due Process Clause of the Fifth Amendment and requires two showings:
(1) poor performance by counsel; and (2) prejudice. Contreras v. Att’y Gen., 665 F.3d
578, 584 (3d Cir. 2012). Prejudice in this context means a “significant possibility” that
the IJ would not have ordered removal but for counsel’s errors. Calderon-Rosas, 2020
WL 1982207, at *5.
Ultimately, a sufficient demonstration of prejudice is missing, even assuming
counsel erred in the various ways described in Rivera’s brief. See Pet’r Br. 13-17. Rivera
points to no evidence—either in the record, or that counsel allegedly should have added
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thereto—having the capacity to establish “that removal would result in exceptional and
extremely unusual hardship” to his United States-citizen daughter (his qualifying
relative). 8 U.S.C. § 1229b(b)(1)(D). In fact, the evidence all runs contrary to Rivera’s
position. In particular, the evidence shows that Rivera’s daughter has never relied on her
father for emotional or financial support; that she is not in ill health; that she will not join
Rivera in Mexico if he is removed; and that she is essentially a stranger to Rivera. See,
e.g., AR 140 (Rivera: “Her name is – I don’t have. I don’t recall exactly right now
exactly her name. * * * [T]he truth is almost never have I lived with her.”); cf. In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 58 (BIA 2001) (explaining that for purposes of
satisfying § 1229b(b)(1)(D), “hardship to the applicant for relief is not considered; only
hardship to the alien’s United States citizen or lawful permanent resident spouse, parent,
or child may be considered”). Accordingly, there is no possibility that counsel’s
performance affected the outcome in this case.
IV.
For the reasons outlined above, Rivera’s petition for review will be denied.
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