64 F.4th 1208
11th Cir.2023Background
- Ponce Flores, a Mexican national, unlawfully reentered the U.S. in 2004 and has two U.S.-citizen daughters; the elder, Nancy, has severe autism.
- In 2018 he applied for cancellation of removal under INA § 240A(b)(1), alleging exceptional and extremely unusual hardship to his daughter.
- The IJ denied cancellation, finding Flores not credible and that he failed to prove continuous presence, good moral character, and the hardship element.
- Flores appealed to the BIA and moved to reopen/remand, alleging his prior counsel rendered ineffective assistance and submitted new corroborating evidence per Matter of Lozada.
- The BIA affirmed the IJ and denied the motion to reopen, concluding Flores had identified counsel deficiencies but failed to show prejudice (i.e., that but for counsel’s errors he would have proved the requisite hardship).
- On review, the Eleventh Circuit held Flores’s due-process claim based on denial of discretionary cancellation was not colorable and that factual hardship and related prejudice findings are not reviewable under 8 U.S.C. § 1252(a)(2)(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of cancellation and related ineffective-assistance claim implicates a constitutional due-process right and is reviewable | Flores: counsel’s ineffective assistance deprived him of Fifth Amendment due process because it caused denial of cancellation | Government: cancellation is purely discretionary; there is no protected liberty interest in receiving it, so no colorable due-process claim | Held: Denial of discretionary cancellation does not implicate a protected liberty interest; due-process claim is not colorable, so court lacks jurisdiction under § 1252(a)(2)(D) |
| Whether the BIA misapplied Matter of Lozada’s procedural requirements for ineffective-assistance claims | Flores: he complied with Lozada and the BIA erred in suggesting otherwise | Government: BIA cited Lozada and did not rule Flores failed procedural compliance; it addressed prejudice instead | Held: No legal error on Lozada compliance; BIA applied correct standard and any factual determinations about compliance are not reviewable here |
| Whether the BIA erred in finding no prejudice from counsel’s deficiencies when it considered Flores’s new evidence | Flores: new evidence would have satisfied hardship and changed the outcome | Government: BIA reviewed new evidence de novo and concluded hardship still not shown; hardship is a factual, discretionary finding | Held: Prejudice determination depended on the factual hardship finding; such fact-intensive discretionary findings are barred from review by § 1252(a)(2)(B)(i) |
| Whether the court may review the BIA’s hardship determination on appeal | Flores: BIA failed to weigh all hardship factors cumulatively per Matter of Monreal-Aguinaga | Government: hardship is a factual discretionary determination; the BIA cited the correct standard and applied it | Held: Court lacks jurisdiction to review the BIA’s factual hardship finding or how it weighed the factors under § 1252(a)(2)(B) |
Key Cases Cited
- Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999) (discretionary relief does not create a protected liberty interest for due-process purposes)
- Patel v. Garland, 142 S. Ct. 1614 (2022) (courts lack jurisdiction to review factual findings made in discretionary-relief proceedings)
- Pereida v. Wilkinson, 141 S. Ct. 754 (2021) (establishing eligibility does not guarantee discretionary relief)
- Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311 (11th Cir. 2013) (§ 1252(a)(2)(B) bars review of motions to reopen that hinge on discretionary § 1229b findings)
- Sow v. U.S. Att’y Gen., 949 F.3d 1312 (11th Cir. 2020) (rare reversal of BIA denial of motion to reopen for ineffective assistance where prejudice was clear)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) (Lozada prejudice requires reasonable probability that counsel’s errors changed the outcome)
- Flores-Alonso v. U.S. Att’y Gen., 36 F.4th 1095 (11th Cir. 2022) (court cannot review how the BIA weighed hardship factors so long as proper legal standard was cited)