Morales v. Holder
546 F. App'x 762
10th Cir.2013Background
- Morales is a Mexican citizen who entered the U.S. in 1988, lived in California and Utah, and is married to a U.S. citizen with four U.S. citizen children.
- In 2011 Morales was charged with inadmissibility based on unlawful presence and sought adjustment of status under 8 U.S.C. §1255(i) along with a §1182(h) hardship waiver.
- Morales admitted using a birth certificate alias to obtain work in Utah, which led the IJ to consider a possible §1182(a)(6)(C)(ii)(I) false-claim ground for inadmissibility.
- The IJ found Morales testified he used a birth certificate to claim U.S. citizenship, rendering him inadmissible, and thus ineligible for adjustment; the BIA affirmed.
- Morales filed a motion to reopen alleging ineffective assistance of counsel related to the birth-certificate incident; the BIA denied the motion and Morales pursued two petitions for review.
- The court dismisses one petition for lack of jurisdiction, and partially dismisses and partially denies the other petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of ineffective-assistance claims | Morales alleges ineffective assistance of counsel before the IJ and on appeal. | Exhaustion requires presenting the exact theory to the BIA; Morales did not in No. 12-9583. | Petition dismissed for lack of jurisdiction due to exhaustion. |
| Reviewability of the BIA's alternate waiver decision | Ms. Lui's ineffective assistance should affect eligibility for §1182(h) waiver. | BIA's alternative resolution rests on discretionary hardship factors and is unreviewable. | No jurisdiction to review the BIA's alternate discretionary disposition under §1182(h). |
| Post-conclusion voluntary departure and counsel effectiveness | Ms. Lui failed to pursue post-conclusion voluntary departure; prejudice shown. | No prejudice shown; the BIA relied on evidence of ineffectiveness and failure to meet hardship/discretionary factors. | Court reviews post-conclusion voluntary-departure arguments; no prejudice established; no reversal of the BIA's ruling on this ground. |
| Remand request under inherent authority | Pending legislation warrants remand to secure relief. | Remand based on pending legislation is inappropriate; remand not authorized by law. | Remand request denied as frivolous; inherent-authority relief not available. |
Key Cases Cited
- Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007) (exhaustion required for §1252(d)(1) jurisdiction)
- Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010) (issue-exhaustion requirement; limits on raising new theories in court)
- Munis v. Holder, 720 F.3d 1293 (10th Cir. 2013) (hardship waiver review is discretionary and unreviewable)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (abuse of discretion standard for motion to reopen)
- Akinwunmi v. INS, 194 F.3d 1340 (10th Cir. 1999) (ineffective-assistance claims require due-process prejudice)
- United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004) (due-process prejudice standard for ineffective assistance)