Rosendo Ponce Flores v. U.S. Attorney GeneralRosendo Ponce Flores v. U.S. Attorney General
Petition for Review of a Decision of the Board of Immigration Appeals
Agency No. A077-460-794
Before WILLIAM PRYOR, Chief Judge, and HULL and MARCUS, Circuit Judges.
Rosendo Ponce Flores petitions for review of the Board of Immigration Appeals‘s (“BIA“) order (1) affirming the Immigration Judge‘s (“IJ“) denial of his application for cancellation of removal and dismissing his appeal, and (2) denying his motion to reopen and remand his removal proceedings. Ponce Flores, a citizen of Mexico, conceded removability. This petition is about only his application for cancellation of his removal. The main grounds for both his appeal to the BIA and his motion to reopen were Ponce Flores‘s claim that his counsel rendered ineffective assistance and denied him constitutional due process as to his cancellation-of-removal application.
After review and with the benefit of oral argument, we conclude as to the denial of Ponce Flores‘s application that: (1) cancellation of removal is a purely discretionary form of relief from removal; (2) Ponce Flores does not have a constitutionally protected liberty interest in that purely discretionary relief; and (3) therefore, Ponce Flores‘s constitutional due process claim is meritless, and we lack jurisdiction to entertain it under the Immigration and Nationality Act (“INA“) § 242(a)(2)(D),
As to Ponce Flores‘s ineffective assistance claims in his motion to reopen and remand, we conclude that: (1) Ponce Flores cannot establish a constitutional due process violation based on the BIA‘s denial of his motion to reopen because he does not have a protected liberty interest in either discretionary cancellation of removal or in the granting of a motion to reopen; (2) the BIA properly followed its legal precedent in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (3) to the extent Ponce Flores‘s challenge to the denial of his motion to reopen rests on an argument that the BIA erred in ruling that he had not demonstrated that but for his counsel‘s deficiencies he would have proved the requisite hardship, we lack jurisdiction to entertain this claim.
I. BACKGROUND
A. Ponce Flores‘s Unlawful Entry
Ponce Flores, a native and citizen of Mexico, first entered the United States in either 1995 or 1996. In 1999, Ponce Flores
In 2004, Ponce Flores unlawfully re-entered the United States in Arizona without inspection. He and his wife settled in Naples, Florida, where he works.
Ponce Flores and his wife have two daughters who were born in Naples and are U.S. citizens. Born in 2004, their oldest daughter, Nancy, was diagnosed with autism spectrum disorder and expressive language disorder. Born in 2012, their younger daughter, Stephanie, does not have special needs.
B. Initiation of Removal Proceedings in 2016
In October 2016, Ponce Flores was arrested for domestic battery of his wife, although charges were never filed. He also had two traffic infractions for driving without a license and driving on a suspended license, but adjudication for both offenses was withheld.
In November 2016, the Department of Homeland Security served Ponce Flores with a notice to appear that charged him with removability on two grounds: (1) under
Sometime in 2017, Lizet Cornejo and her daughters moved to Dallas, Texas. Ponce Flores remained in Naples, Florida. In Texas, his daughter Nancy began attending a school with a special program for autism.
C. Application for Cancellation of Removal in 2018
Later, Ponce Flores retained attorney Matus Varga to represent him. In January 2018, attorney Varga filed Ponce Flores‘s application for cancellation of removal pursuant to
Attorney Varga filed multiple documents, such as: (1) documents about Nancy‘s medical and educational needs; (2) medical records and reports from her doctors; (3) records from her elementary school in Florida and her middle school in Texas indicating she received special education services; (4) Ponce Flores‘s tax returns for 2008 and 2011 to 2016; (5) notarized character letters from friends; and (6) a notarized letter from Lizet Cornejo, stating that Nancy did not understand her father‘s absence and suffered every day waiting for his return.
At his 2018 merits hearing, Ponce Flores testified that he remained in Florida for his job and flew to Texas once a month to see his family. Ponce Flores admitted, however, that he was arrested for (1) alien smuggling and convicted of illegal reentry and (2) domestic abuse but those charges were dismissed. He also admitted that his family had received government assistance for Nancy‘s therapy and health insurance.
D. IJ‘s Denial of Cancellation of Removal
In July 2018, the IJ‘s decision denied Ponce Flores‘s application for cancellation of removal. The IJ found that Ponce Flores‘s testimony lacked credibility due to (1) inconsistencies between his hearing testimony and the information in his application and (2) his failure to provide corroborating evidence for key aspects of his testimony.
The IJ denied Ponce Flores‘s application because he failed to establish three of the four statutory requirements for eligibility for discretionary cancellation of removal under
As to the hardship requirement for eligibility, the IJ acknowledged that Nancy‘s autism was serious and lifelong. The IJ concluded, however, that Ponce Flores failed to establish (1) Nancy was currently enrolled in a special school or program in Texas, (2) the kind of relationship Ponce Flores had with Nancy given that she lived in Texas, (3) what financial assistance he provided her, (4) whether Nancy received subsidized medical assistance, and (5) whether Lizet Cornejo could work or had other means of support. The IJ stressed that Ponce Flores had not submitted corroborating documentation, such as affidavits from his wife or others, transportation receipts, wire transfers, or bank statements.
E. BIA Appeal and Motion to Reopen Based on Ineffective Assistance
After retaining new counsel, Ponce Flores appealed the IJ‘s denial to the BIA. Ponce Flores‘s appeal challenged the IJ‘s findings that Ponce Flores (1) lacked credibility; (2) had not shown ten years of continuous physical presence; and (3) had not established the requisite hardship to his daughter Nancy. Ponce Flores contended that but for counsel‘s ineffective assistance, the IJ would not have made these findings. Ponce Flores also moved to remand and reopen his cancellation-of-removal application due to attorney Varga‘s ineffective assistance.1 Ponce Flores contended that the inconsistencies and missing evidence were a direct result of Varga‘s failures to consult with Ponce Flores before completing and submitting his application, to communicate with and prepare Ponce Flores for his hearing, and to obtain and submit
Ponce Flores attached tо his motion new evidence, including (1) medical and educational reports and evaluations confirming Nancy‘s learning disabilities and her continued placement in special education programs in Texas; (2) records indicating Ponce Flores‘s financial support for and involvement with his family in Texas; (3) documents about his monthly flights to Dallas; (4) his declaration summarizing his agreement with Varga and Varga‘s deficient actions; (5) documents showing that Ponce Flores notified Varga of allegations of ineffective assistance and Varga responded to those allegations; and (6) evidence that Ponce Flores filed a complaint with the Attorney General Grievance Committee in New York, where Varga was admitted to practice law. Before the BIA, Ponce Flores argued: (1) his evidence complied with the BIA‘s procedural requirements for ineffective
assistance claims set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and (2) he had shоwn the requisite prejudice to reopen his application for cancellation of removal.
F. BIA Decision Affirming IJ and Denying Motion to Reopen
In January 2021, the BIA dismissed Ponce Flores‘s appeal of the IJ‘s decision and denied his motion to reopen and remand his application for cancellation of removal for further consideration.2 As to Ponce Flores‘s ineffective assistance claim, the BIA concluded that (1) he had “identified deficiencies in his representation by former attorneys,” but (2) he had not shown prejudice “as a result of his former attorneys’ alleged ineffectiveness so as to have affected the outcome of these proceedings.” As to the IJ‘s hardship finding, the BIA “presum[ed] without deciding” that Ponce Flores was credible, considered his
new evidence, and reviewed de novo the IJ‘s hardship finding. After doing so, the BIA determined that Ponce Flores did not establish that his removal wоuld result in exceptional and unusual hardship to his qualifying U.S.-citizen daughters. Ponce Flores thus had not shown his eligibility for cancellation of removal.
The BIA noted Ponce Flores‘s hearing testimony that he had lived apart from his family for over a year, that he supported them financially and visited monthly, and that his daughters would remain in the United States with their mother even if Ponce Flores was removed to Mexico. The BIA concluded Ponce Flores had “established that his eldest daughter suffers from severe autism,” but stressed that Ponce Flores testified she was covered by state-funded health insurance in Texas. The BIA determined that “the record does not suggest she will lose that coverage or access to medication, treatment, or educational accommodations” upon Ponce Flores‘s removal.
Ponce Flores timely filed a petition for review. In his petition, Ponce Flores argues that his former counsel‘s ineffective assistance caused the IJ‘s denial of his application for cancellation of removal and denied him constitutional due process. He also contends the BIA abused its discretion when it denied his motion to reopen and remand based on his former counsel‘s ineffective assistance.
IV. BIA DECISION AFFIRMING IJ‘S DENIAL OF CANCELLATION OF REMOVAL
A. Standard of Review
We review only the BIA‘s decision as the final agency decision except to the extent the BIA adopts the IJ‘s decision. Ayala v. U.S. Att‘y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We review questions of law de novo. Id. at 948. We review our own subject matter jurisdiction de novo. Blanc v. U.S. Att‘y Gen., 996 F.3d 1274, 1277 (11th Cir. 2021).
B. Jurisdiction
Congress has restricted our jurisdiction over certain immigration matters. Under
Notwithstanding
C. Constitutional Due Process Claim Based on Ineffective Assistance
Here, Ponce Flores argues that but for his attorney Varga‘s deficient performance, he would have successfully carried his burden to prove his eligibility for cancellation of removal and therefore he was
As we recognized in Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999), when an alien retains counsel, an alien has a right to effective assistance of thаt counsel in the underlying removal proceedings. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999); see also Gbaya v. U.S. Att‘y Gen., 342 F.3d 1219, 1221 (11th Cir. 2003). This is because a removal “proceeding implicates an alien‘s liberty interest, which is protected by the Due Process Clause.” Mejia Rodriguez, 178 F.3d at 1146. This is Mejia Rodriguez‘s first principle.
In contrast, “the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest” and thus cannot deprive an alien of due process under the Fifth Amendment. Id. at 1146-48. This is Mejia Rodriguez‘s second principle.
Specifically, in Mejia Rodriguez, this Court concluded that an alien is not deprived of due process where his counsel‘s deficient performance prevented the alien from being eligible for discretionary relief from deportation. Id. at 1148. The alien in Mejia Rodriguez, much like Ponce Flores here, did not contest his grounds for deportation. Id. at 1146. Instead, Mejia Rodriguez sought a suspension of his deportation, an earlier form of discretionary relief that was the precursor to the cancellation of removal that Ponсe Flores now seeks.3 Id. at 1145-46. Mejia Rodriguez argued that but for his attorney‘s ineffective assistance during his deportation proceedings, “he would have been eligible for suspension of deportation.” Id. at 1146.
This Court concluded that Mejia Rodriguez was not deprived of due process under the Fifth Amendment. Id. at 1148. The Court explained that because suspension of deportation was “an act of grace” committed to the “unfettered discretion” of the Attorney General, “even if an alien meets the statutory requirements for eligibility ..., the alien [was] not in any way entitled to this exceptional remedy.” Id. at 1147 (quotation marks omitted). In fact, the “alien‘s actual chances of receiving such discretionary relief are too speculative, and too far beyond the capability of judicial review, to conclude that the alien has actually suffered prejudice from being ineligible fоr suspension of deportation.” Id. at 1148 (stating “this Court cannot predict the subjective and fact-intensive judgments that the Attorney General
would make in deciding whether to grant extraordinary relief, such as the suspension of deportation“).
Consequently, this Court in Mejia Rodriguez held that “an attorney‘s deficient representation does not deprive an alien of due process if the deficient representation merely prevents the alien from being eligible for suspension of deportation.” Id. Since Mejia Rodriguez, this Court has continued to apply this general rule to other forms of discretionary relief, including cancellation of removal. See, e.g., Alhuay v. U.S. Att‘y Gen., 661 F.3d 534, 548-49 (11th Cir. 2011) (holding absence of interpreter at hearing on applications for waiver of removability and cancellation of removal did not violate due process given alien had “no cognizable due process interest because those forms of relief are discretionary“); Scheerer v. U.S. Att‘y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (holding alien‘s due process claim based on BIA‘s application of a former regulation could not prevail because he had “no constitutionally protected interest either in the granting of his motions [to reopen or for reconsideration] or in adjustment of status,” all discretionary forms of relief); Garcia v. Att‘y Gen. of U.S., 329 F.3d 1217, 1223-24 (11th Cir. 2003) (holding alien‘s due process claim based on counsel‘s ineffective assistance in preparing application for waiver of excludability lacked merit because such waiver, “while guided by interpretive decisions, remains a purely discretionary form of relief“); Mohammed v. Ashcroft, 261 F.3d 1244, 1247-51 (11th Cir. 2001) (holding that alien‘s due process claim based on retroactive application of an amended statute that effectively foreclosed cancellation of removal failed because he “ha[d] no constitutionally-protected right to discretionary relief from removal“).
Here, Ponce Flores sought cancellation of removal, a form of relief from removal that, like its predecessor suspension of deportation, is purely discretionary. See
Ponce Flores, nonetheless, argues that this Court has “consistently reviewed due process claims based on ineffective assistance of counsel in connection with discretionary applications,” suggesting Mejia Rodriguez has been undermined. In this regard, Ponce Flores cites these four decisions: (1) Dakane v. United States Attorney General, 399 F.3d 1269 (11th Cir. 2005), (2) Sow v. United States Attorney General, 949 F.3d 1312 (11th Cir. 2020), (3) Frech v. United States Attorney General, 491 F.3d 1277 (11th Cir. 2007), and (4) Ali v. United States Attorney General, 643 F.3d 1324 (11th Cir. 2011). We review each decision below.
For starters, none of these decisions held that an alien has a constitutionally protected liberty interest in purely discretionary relief from a removal order, such as cancellation of removal. None of these found a constitutional due process violation. Rather, to the extent the decisions review ineffective assistance claims, they did so in the context of a motion to reopen and based on an alien‘s statutory right to have counsel present at the alien‘s expense.
Let‘s begin with Dakane. Our Court in Dakane stated: “The sole issue before us in this appeal is whether Dakane was required to demonstrate in his motion to reopen that his counsel‘s ineffective assistance prejudiced his removal proceedings.” 399 F.3d at 1272. Our holding in Dakane was that: (1) “a petitioner claiming ineffective assistance of counsel in a motion for
We recognize that Dakane in dicta also stated “[i]t is well established in this Circuit that an alien in civil deportation proceedings . . . has the constitutional right under the Fifth Amendment Due Process Clause right to a fundamentally fair hearing to effective assistance of counsel where counsel has been obtained,” citing Gbaya v. United States Attorney General, 342 F.3d 1219, 1221 (11th Cir. 2003). Id. at 1273.
Dakane, however, added a clarifying footnote six to its Gbaya cite that points out (1) Dakane is an inadmissible alien; and (2) ”inadmissible aliens such as Dаkane have traditionally not been able to claim constitutional due process protections in exclusion proceedings“; but (3) “they are ensured a fundamentally fair hearing through statutory protections provided for by Congress“; and (4) “Congress has long recognized the importance of counsel in immigration proceedings as evidenced by the statutory right to presence of counsel under § 1362 of the INA.” Id. at 1273 n.6 (quotation marks omitted) (emphasis added). The Dakane Court then cited with approval Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001), in which the Third Circuit concluded that an excludable alien facing exclusion enjoys a statutory right under
Our point is that Dakane does not undermine Mejia Rodriguez‘s holding that aliens do not have a constitutionally protected liberty interest in discretionary relief from removal and do not have a constitutional due process right to effective assistance of counsel in connection with discretionary applications. Instead, Dakane involved a statutory protection. While Ponce Flores elides this distinction, it is a critical one. Our Court has not permitted a constitutional due process claim based on the denial of discretionary relief like cancellation of removal. So Ponce Flores‘s argument that he can raise a constitutional due process claim based on ineffective assistance of counsel fails.4
Ponce Flores‘s citation to Sow fares no better. Sow presented himself at the Mexico border, seeking asylum for his fear of returning to Guinea. Sow, 949 F.3d at 1314. After a merits hearing where Sow was represented by counsel, the IJ denied his asylum application. Id. at 1314-16. The IJ stated that Sow “should, in fact, be given asylum based upon past persecution,” if it were not for the evidentiary issues that Sow‘s attorney hаd allegedly
disregarded. Id. at 1319. Sow, represented by new counsel, appealed to the BIA and filed a motion to remand based on ineffective counsel, which the BIA denied. Id. at 1316-17. In Sow, this Court reviewed only whether the BIA had abused its discretion in denying a motion to reopen based on ineffective assistance, concluding that it had. See id. at 1313 (quotation marks omitted).
Our Court in Sow did not need to speculate as to whether the outcome may have been different if counsel had performed adequately because “[t]he IJ‘s uniquely direct statement confirm[ed] that it would have.” Id. at 1319. Sow did not address, or even mention, whether the alien had a constitutionally protected liberty interest in discretionary relief from removal.
Ponce Flores also cites Ali, which involved a discretionary waiver under
Ponce Flores‘s last case, Frech, is equally inapposite. The alien in Frech sought adjustment of status under § 202 of the Nicaraguan Adjustment and Central American Relief Act of 1997, a mandatory form of relief if the eligibility requirements are mеt. 491 F.3d at 1278-79 & n.1. Frech did not address either
discretionary relief from removal or a claim of ineffective assistance of counsel.
The alien in Frech challenged the IJ‘s denial of his motion for a change of venue from Miami to Houston. Id. at 1279. Frech‘s home, business, retained attorney, and witnesses were in Houston. Id. at 1279-80. After the IJ denied the venue motion, Frech‘s Texas counsel moved to withdraw and the IJ granted that motion. Id. at 1280. At the merits hearing in Miami, Frech appeared pro se, and the IJ denied adjustment of status and the relief Frech sought based on hardship to his family. Id. The BIA affirmed. Id.
In his petition for review, Frech argued the denial of his venue motion denied him constitutional due process because it deprived him of his right to be represented by the counsel of his choice and the ability to present evidence. Id. at 1281-82. Our Court stated that the deprivation of an alien‘s right to counsel of his choice in removal proceedings “would, under certain circumstances, constitute a due process violation.” Id. at 1282 (emphasis added). Yet our Court skipped over what those circumstances might be and whether they were met. This Court denied Frech‘s petition because he “ha[d] not shown that he was substantially prejudiced by any due process violation.” Id. (explaining Frech had not shown the dismissal of his attorney in Texas “was related to the location of the hearing” or that he had “sought a continuance thereafter for the purpose of obtaining another attorney” in Florida).
Nothing in Frech (or Dakane, Sow, or Ali) undermines Mejia Rodriguez and our subsequent decisions squarely holding that an alien does not have a constitutionally protected liberty interest in purely discretionary forms of relief like cancellation of
Because Ponce Flores‘s constitutional due process claim—even if based on ineffective assistance—is meritless, it is not colorable. Accordingly, we lаck jurisdiction under
D. Hardship Requirement
Although not raised as a separate argument, Ponce Flores‘s petition does assert that the BIA erred in finding that, even assuming he was credible, “he did not establish the requisite hardship to his daughters.” Ponce Flores claims “the BIA failed to consider all hardship factors in the aggregate,” which he contends violated Matter of Monreal-Aguinaga, 23 I & N. Dec. 56, 63-64 (BIA 2001).
To the extent Ponce Flores is challenging the BIA‘s decision affirming the IJ‘s hardship determination, we lack jurisdiction to review this issue. Under our binding precedent, this Court lacks jurisdiction to review the denial of cancellation of removal grounded on the fact-based finding that the alien failed to show exceptional and extremely unusual hardship to a qualifying relative. See Patel, 971 F.3d at 1279 (“[A]ll eligibility determinations for the five enumerated categories оf discretionary relief are barred from review.“); Flores-Alonso, 36 F.4th at 1100.
Further, in Flores-Alonso, this Court held that an argument like the one Ponce Flores makes here—that the BIA failed to consider all the hardship factors in the aggregate “in the way that Matter of Monreal-Aguinaga instructs it to do, even though it cited the proper legal standard“—does not present a legal question this Court has jurisdiction to review under
In Ponce Flores‘s appeal, the BIA cited Matter of Monreal-Aguinaga, among other BIA precedents pertaining to the showing of hardship, and explicitly stated it had “consider[ed] all of the hardship factors in this case cumulatively, including the hardships that may result from the medical, economic, and emotional factors.” Hence, as to the hardship requirement for eligibility, Ponce Flores has not raised a legal question that we have jurisdiction to
V. BIA‘S DECISION DENYING MOTION TO REOPEN CANCELLATION-OF-REMOVAL APPLICATION
Ponce Flores argues that the BIA abused its discretion in denying his motion to reopen and remand based on attorney Varga‘s ineffective assistance before the IJ. Ponce Flores contends the BIA (1) failed to follow its own precedent in Lozada, and (2) erred in determining he had not shown prejudice as a result of that ineffective assistance. Ponce Flores also seeks to revisit his constitutional due process claims and the BIA‘s hardship determination in denying his motion to reopen.
“The decision to grant or deny a motion to reopen . . . is within the discretion of the BIA,
A. Standard of Review
We review the BIA‘s denial of a motion to reopen removal proceedings for an abuse of discretion. Jiang v. U.S. Att‘y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited to determining whether the BIA exercised its discretion in an arbitrary or capricious manner.” Id. “The BIA abuses its discretion when it misapplies the law in reaching its decision.” Ferreira v. U.S. Att‘y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). We review de novo our own subject matter jurisdiction. Blanc, 996 F.3d at 1277.
B. Jurisdiction
“Generally, we have jurisdiction to review the denial of a motion to reopen.” Butalova, 768 F.3d at 1182.
However, when direct review of the underlying order is barred by one of the INA‘s jurisdiction-stripping provisions, we also lack “jurisdiction to entertain an attack on that order mounted through” a motion to reopen. Patel v. U.S. Att‘y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003) (concluding
Guzman-Munoz is particularly instructive because it addressed a motion to reopen proceedings in which the alien, like Ponce Flores, unsuccessfully sought discretionary cancellation of removal under
In doing so, we stressed that
Finally, although we noted that we “retain[ed] jurisdiction to review constitutional challenges” under
C. Constitutional Due Process Claims
To the extent Ponce Flores contends the BIA abused its discretion in denying his motion to reopen because his counsel‘s ineffective assistance deprived him of constitutional due process under the Fifth Amendment, we lack jurisdiction to review this claim mounted through a motion to reopen for the same reasons we cannot review this claim directly. Because Ponce Flores has no protected liberty interest in discretionary cancellation of removal, his Fifth Amendment due process claim is not colorable for purposes of
To the extent Ponce Flores contends the BIA‘s own denial of his motion to reopen itself deprived him of constitutional due process, that claim also lacks merit. An alien cannot establish a Fifth Amendment due process violation based on the BIA‘s denial of a motion to reopen because an alien in those circumstances has no constitutionally protected liberty interest in the granting of a motion to reopen. See Scheerer, 513 F.3d at 1253 (“Because Scheerer has no constitutionally protected interest either in the granting of his motions [to reopen and to reconsider] or in adjustment of status, he cannot establish a due process violation based on the BIA‘s decisions.“); Butalova, 768 F.3d at 1183 (“An alien, however, does not have a constitutionally protected interest in discretionary forms of relief, such as the granting of a motion to reopen.“).
Having determined Ponce Flores‘s ineffective assistance claim raises no colorable due process violation that we can review, we consider whether his ineffective assistance claim otherwise presents a reviewable legal question.
D. Ineffective Assistance Claim Under Matter of Lozada
Examination of our jurisdiction over an ineffective assistance claim requires
Procedurally, Lozada requires that an ineffective assistance claim be supported by: (1) an affidavit attesting to the relevant facts about the agreement with former counsel about actions to be taken and former counsel‘s representations in that regard; (2) evidence that former counsel was informed of the allegations and provided an opportunity to respond and of former counsel‘s response, if any; and (3) evidence as to whether the alien filed a complaint against former counsel with the appropriate disciplinary authorities. 19 I. & N. Dec. at 639.
“[I]n addition to substantial, if not exact, compliance with the procedural requirements of Lozada, a petitioner claiming ineffective assistance of counsel . . . must also show prejudice.” Dakane, 399 F.3d at 1274 & n.7 (citing Matter of Lozada, 19 I. & N. Dec. at 640). Under Lozada‘s prejudice component, “[p]rejudice 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. at 1274.
With this background, our threshold question is whether we have jurisdiction to review the BIA‘s denial of Ponce Flores‘s ineffective assistance claim. Ponce Flores argues he raises these two reviewable legal questions: (1) the BIA erred in suggesting he failed to comply with Lozada‘s procedural requirements, when in fact he fully complied; and (2) the BIA erred in its Lozada prejudice determination.
As to the procedural requirements, the BIA cited the proper legal standard for ineffective assistance claims from its own Lozada. Although the proper legal standard is a reviewable legal question, we cannot make a legal error out of a BIA factual determination that the evidence did or did not satisfy Lozada‘s three procedural requirements. See Alvarez Acosta, 524 F.3d at 1196-97. Whether in fact Ponce Flores‘s particular evidеnce was sufficient to satisfy or substantially comply with the BIA‘s Lozada procedural requirements does not present a legal question that this Court has jurisdiction to review under
Alternatively, and in any event, the BIA did not find that Ponce Flores failed to comply with Lozada‘s procedural requirements. The BIA instead concluded that “even if [it] were to find [Ponce Flores] had complied with the Lozada requirements, [Ponce Flores] must also establish he suffered prejudice as a result of his former attorneys’ alleged ineffectiveness.” The BIA then found that Ponce Flores had “identified deficiencies in his representation by former attorneys,” but concluded he had not shown he suffered prejudice as a result. In short, there is no merit to
As for the BIA‘s prejudice determination, the BIA presumed Ponce Flores‘s credibility and reviewed all the evidencе, including his new evidence, de novo. The BIA then determined he “ha[d] not demonstrated that but for the deficiency in his prior counsels’ representation, he would have met his burden of proof to demonstrate the requisite hardship to his qualifying relative children.” As a result, Ponce Flores had not demonstrated he “suffered prejudice as a result of his former attorneys’ alleged ineffectiveness so as to have affected the outcome of these proceedings.”
In other words, the BIA‘s analysis of Lozada‘s prejudice prong was commensurate with its de novo hardship determination. Stated another way, the BIA reviewed de novo all of Ponce Flores‘s new evidence and made its own determination that this new evidence still would not satisfy Ponce Flores‘s burden to show the requisite hardship to his daughters under
As already discussed, under Flores-Alonso we lack jurisdiction to review directly the BIA‘s hardship determination under
Of course, whether the BIA applied the correct prejudice standard is a legal question we retain jurisdiction to review under
Ponce Flores‘s argument isolates the BIA‘s finding that he failed to meet his burden of proof as to hardship. He claims the BIA abused its discretion bеcause his new evidence established the requisite hardship and that the outcome of his proceedings would have been different. The first problem for Ponce Flores is that his “argument that the BIA abused its discretion by failing to weigh an alien‘s factual scenario presents a ‘garden-variety abuse of discretion argument—which can be made by virtually every alien subject to a final removal order—[and] does not amount to a legal question under
The second problem for Ponce Flores‘s particular case is that whether an alien carries his burden to show the requisite hardship under
Ponce Flores relies on Sow, where the alien‘s motion to remand was based on
Sow does not help Ponce Flores because there was no
In sum, to the extent Ponce Flores‘s challenge to the denial of his motion to reopen rests on an argument that the BIA erred in ruling that he had not demonstrated that but for his counsel‘s deficient performance, he would have proved the requisite hardship under
PETITION DISMISSED IN PART AND DENIED IN PART.