[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 22, 2008
Nos. 07-11841 & 07-13365 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-468-582
JOSE EFRAIN MENDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of Decisions of the
Board of Immigration Appeals
_________________________
(July 22, 2008)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jose Efrain Mendez, a native and citizen of Colombia, appeals from the
Board of Immigration Appeals’ (BIA’s) decisions denying his motion to reopen his
removal proceedings and further denying his motion to reconsider that order. The
BIA, in its denial of his motion to reopen and motion to reconsider, held
(1) Mendez’s motion for reconsideration was numerically barred, (2) Mendez had
failed to produce any evidence that would alter its determination he had not
demonstrated exceptional circumstances so as to excuse the late filing of his
asylum application, and (3) Mendez had failed to meet his burden of proof in
establishing that, but for his attorney’s ineffectiveness, the outcome of his
proceedings would have been different. Both Mendez and the Government assert
several issues on appeal, which we address in turn. After review, we deny
Mendez’s petitions.
I.
The Government contends there is no Fifth Amendment due process right to
effective assistance of counsel in immigration cases, and the failure to receive
relief that is purely discretionary, such as asylum, does not amount to a deprivation
of a liberty interest and, accordingly, does not provide a basis for an ineffective
assistance of counsel claim.
In Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005), a case
where an alien sought relief from removal in the form of asylum, we held “[i]t is
well established in this Circuit that an alien in civil deportation proceedings, while
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not entitled to a Sixth Amendment right to counsel, has the constitutional right
under the Fifth Amendment Due Process Clause to a fundamentally fair hearing to
effective assistance of counsel where counsel has been obtained.” We have further
held that, while “failure to receive relief that is purely discretionary in nature does
not amount to a deprivation of a liberty interest,” Mejia Rodriguez v. Reno, 178
F.3d 1139, 1146 (11th Cir.1999), aliens do have a protected interest in petitioning
for asylum, Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. Unit B
1982) (finding, “in the federal regulations establishing an asylum procedure . . . a
clear intent to grant aliens the right to submit and the opportunity to substantiate
their claim for asylum”). Because the Government’s arguments are foreclosed by
our precedent, we turn to the merits of Mendez’s petitions.
II.
Mendez asserts the BIA erred when it dismissed his motion for
reconsideration as numerically barred, as this was the first and only motion to
reconsider filed regarding the BIA’s denial of his motion to reopen. The
Government concedes this was error.
Under 8 C.F.R. § 1003.2(b)(2), “[a] party may file only one motion to
reconsider any given decision and may not seek reconsideration of a decision
denying a previous motion to reconsider.” 8 C.F.R. § 1003.2(b)(2). In Calle v.
U.S. Atty. Gen., 504 F.3d 1324, 1328 (11th Cir. 2007), we held:
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The regulation does not provide that an alien may file
only one motion to reconsider throughout her entire
proceedings. To the contrary, the regulation’s use of the
singular terms “a decision” and “any given decision”
suggests that an alien may file a motion to reconsider as
to each decision by the BIA that an alien is removable.
Therefore, we concluded Calle’s motion to reconsider could not be deemed
numerically barred on the basis of an earlier motion for reconsideration directed at
a different decision. Id. at 1328-29.
Mendez’s motion to reconsider the BIA’s order denying his motion to
reopen was the first motion to reconsider filed for that particular BIA decision.
Accordingly, the BIA abused its discretion when it denied Mendez’s motion as
numerically barred under § 1003.2(b)(2). However, because the BIA also denied
Mendez’s motion on the merits of his claim, as is discussed below, the BIA’s error
in this regard was harmless.
III.
Mendez contends the BIA erred as a matter of law in denying his motion to
reopen on the ground he had not established prejudice resulting from ineffective
assistance of counsel on the basis the evidence presented would not alter the
conclusion the allegations did not rise to the level of persecution. He further
asserts the evidence submitted by him in his motion to reopen provided significant
corroborative evidence that demonstrated there was a reasonable likelihood he was
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eligible for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT) had he received proper representation.
We review both the denial of a motion to reopen a removal order and the
denial of a motion to reconsider for an abuse of discretion. Ali v. U.S. Att’y. Gen.,
443 F.3d 804, 808 (11th Cir. 2006) (motion to reopen); Assa’ad v. U.S. Att’y Gen.,
332 F.3d 1321, 1341 (11th Cir. 2003) (motion to reconsider). Review is “limited
to determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Ali, 443 F.3d at
808 (quotations omitted).
A motion to reopen “shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). We have held an alien can move
to reopen his removal order on the basis of ineffective assistance of counsel, as
Mendez did here. See Dakane, 399 F.3d at 1274.
Motions to reconsider are filed before the immigration officer, court, or the
BIA, for review of claimed errors in the law or facts. See 8 U.S.C. § 1229a(c)(6); 8
C.F.R. § 1003.2(b). “A motion to reconsider shall state the reasons for the motion
by specifying the errors of fact or law in the prior Board decision and shall be
supported by pertinent authority.” 8 C.F.R. 1003.2(b)(1). Here, Mendez filed a
motion to reconsider the BIA’s denial of his motion to reopen, raising the same
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claims on appeal. Thus, to the extent the BIA properly denied his motion to
reopen, it properly denied his motion to reconsider.
To establish ineffective assistance of counsel in the context of a deportation
hearing, “an alien must establish that his or her counsel’s performance was
deficient to the point that it impinged upon the fundamental fairness of the hearing
such that the alien was unable to reasonably present his or her case.” Dakane, 399
F.3d at 1274 (quotations omitted). In Matter of Lozada, 19 I&N Dec. 637, 639
(BIA 1988), the BIA set out the requirements for establishing an ineffective
assistance of counsel claim in immigration proceedings. A motion based on
ineffective assistance of counsel requires (1) the motion be supported by an
affidavit of the respondent setting forth in detail the agreement that was entered
into with counsel, (2) counsel be informed of the allegations leveled against him
and be given an opportunity to respond, and (3) the motion reflect whether a
complaint has been filed with appropriate disciplinary authorities with respect to
any violation of counsel’s responsibilities, and if not, why not. Id.
We have upheld the Matter of Lozada requirements, and held an alien also
must show prejudice when he advances an ineffective assistance claim. Dakane,
399 F.3d at 1274. “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.” Id. Thus, for Mendez to
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succeed under Dakane, he must establish there is a reasonable probability that, but
for the mistakes of his attorney, the outcome of his original asylum, withholding of
removal, and CAT requests would have been different. See id.
The BIA did not abuse its discretion in denying Mendez’s motion to reopen
or motion to reconsider. Mendez failed to demonstrate that, but for his attorney’s
ineffectiveness, there was a reasonable probability the outcome of the proceeding
would have been different. With regard to the timeliness of his asylum application,
Mendez testified at his hearing that he did not speak to an attorney until after the
one-year filing deadline had passed, thus refuting any claims he raised that the
erroneous advice of attorneys excused his untimely filing. With regard to his
claims for withholding of removal and relief under the CAT, the evidence he
submitted either primarily corroborated his testimony before the Immigration
Judge (IJ) which the BIA had found credible, or was cumulative of evidence
already in the record. Further, Mendez does not explain how the evidence
submitted with his motion to reopen differs from that originally submitted, or how
it would have altered the outcome of his removal proceeding had it been submitted
at that time. Accordingly, he has failed to show the BIA’s denial of his motions
was so “arbitrary or capricious” as to amount to an abuse of discretion.
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IV.
Finally, Mendez asserts the BIA erred in its January 30, 2006, order and
order denying his motion to reconsider when it found he had not suffered past
persecution. We review our subject matter jurisdiction de novo. Ruiz v. Gonzales,
479 F.3d 762, 765 (11th Cir. 2007). To the extent the BIA issues a reviewable,
final order, an alien must file a petition for review of such decision within 30 days
after the date of the final order. 8 U.S.C. § 1252(b)(1). This time limit is
mandatory and jurisdictional, and is not tolled or suspended by the filing of a
motion to reopen with the Board. Dakane, 399 F.3d at 1272 n.3.
To the extent Mendez’s argument he BIA erred by finding he did not
establish past persecution is an attempt to argue his attorney’s failure to present the
materials in his motion to reopen was prejudicial to his case, as discussed above, he
did not show prejudice. To the extent Mendez attempts to appeal the BIA’s
January 30, 2006, affirmance of the IJ’s removal order, because Mendez did not
timely appeal from that order, and because the 30 day time period to appeal from
that order has expired, we lack jurisdiction to review the BIA’s January 30, 2006,
decision. Accordingly, Mendez’s petitions for review of the BIA’s order denying
his motion to reopen and motion for reconsideration are denied.
PETITIONS DENIED.
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