Case: 20-60371 Document: 00516103773 Page: 1 Date Filed: 11/22/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 22, 2021
No. 20-60371 Lyle W. Cayce
Summary Calendar Clerk
Bessy Janayra Velasquez-Lopez; Breyner Alayn Godoy-
Velasquez,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 799 631
BIA No. A 206 799 632
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
On behalf of herself and her minor child, Bessy Janayra Velasquez-
Lopez, a native and citizen of Honduras, petitions for review of the Board of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60371 Document: 00516103773 Page: 2 Date Filed: 11/22/2021
No. 20-60371
Immigration Appeals’ (BIA) denying her motion to reopen, based on
ineffective assistance of counsel, due to: untimeliness; and failure to
demonstrate the actions of her former counsel resulted in the denial of her
asylum and withholding-of-removal applications. Velasquez contends her
former attorneys erred by: not securing her husband’s testimony for
corroboration; not timely moving to consolidate her and her husband’s
proceedings; offering a vague particular social group; and lying to her.
Motions to reopen are reviewed under an understandably “highly
deferential abuse of discretion standard”. Lara v. Trominski, 216 F.3d 487,
496 (5th Cir. 2000). For the following reasons, Velasquez fails to meet that
high standard.
A motion to reopen can be based on ineffective assistance of counsel,
but petitioner must demonstrate that, absent deficient performance, relief
would have been granted. Mai v. Gonzales, 473 F.3d 162, 165–67 (5th Cir.
2006) (holding BIA abused its discretion in denying motion to reopen and
remanding for further proceedings regarding whether counsel’s actions
prejudiced petitioner).
Velasquez’ missing-testimony contention is unavailing because, as the
BIA observed, the Immigration Judge noted a lack of corroborating evidence
but also denied her challenges on the merits. Velasquez’ consolidation
challenge similarly fails because she has not offered any reason why
consolidation of her and her husband’s proceedings would have changed the
agency’s analysis, nor has she asserted consolidation would have caused any
new evidence to be introduced.
Accordingly, neither challenge supports her prior counsel made any
errors affecting the outcome of her proceedings. See Beckham v. Wainwright,
639 F.2d 262, 265–67 (5th Cir. 1981) (holding defendant received ineffective
assistance of counsel). Because the BIA relied on lack of prejudice to dismiss
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Case: 20-60371 Document: 00516103773 Page: 3 Date Filed: 11/22/2021
No. 20-60371
Velasquez’ appeal based on untimeliness and the merits, our court need not
address her tolling challenge.
As for Velasquez’ remaining contentions, her ineffective assistance
challenge regarding a particular social group is unexhausted because she did
not raise it to the BIA. Omari v. Holder, 562 F.3d 314, 321–23 (5th Cir. 2009)
(noting petitioner must present challenge to BIA to satisfy exhaustion
requirement). Likewise, her contention her former attorneys lied to her is
abandoned, inter alia, for failure to brief adequately. See Hollis v. Lynch, 827
F.3d 436, 451 (5th Cir. 2016) (noting “lone mention” of contention in
opening brief, without supporting explanation, insufficient).
DISMISSED IN PART, DENIED IN PART.
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