Franco-Ardon v. Barr , 922 F.3d 23 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1522
ADOLFO FRANCO-ARDON,
Petitioner,
v.
WILLIAM P. BARR,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Randy Olen on brief for petitioner.
Laura Halliday Hickein, Trial Attorney, Joseph H. Hunt,
Assistant Attorney General, Shelley R. Goad, Assistant Director,
Office of Immigration Litigation, U.S. Department of Justice, on
brief for respondent.
April 26, 2019

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Acting Attorney
General Matthew G. Whitaker as the respondent.
BARRON, Circuit Judge. Adolfo Franco-Ardon ("Franco-
Ardon"), a Guatemalan citizen, petitions for review of the Board
of Immigration Appeals' ("BIA") denial of his motion to reopen his
2012 order of removal. Franco-Ardon based that motion on his prior
counsel's alleged ineffective assistance of counsel in failing to
file a brief with this Court in his petition for review of the
BIA's denial of his earlier challenge to that removal order. We
deny the petition.
I.
Franco-Ardon's petition arises from the following set of
circumstances. On January 18, 2012, the BIA affirmed the
Immigration Judge's (IJ) decision ordering his removal and denying
his request for asylum, withholding of removal, and protection
under the Convention Against Torture. Franco-Ardon then
petitioned for review of the BIA's ruling to our Court in Franco-
Ardon v. Holder, C.A. No. 12-1214. We dismissed the petition on
October 23, 2012. We did so on the ground that Franco-Ardon had
failed to file a brief pursuant to Local Rules 45.0(a) and 3.0(b).
Franco-Ardon thereafter made a number of applications
for a stay of removal to this Court, the last of which we denied
in August of 2017 and thus many years after he had filed his
petition for review of the BIA's ruling affirming his order of
removal. Franco-Ardon then retained new counsel, who investigated
the reasons for our dismissal of Franco-Ardon's 2012 petition for
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review. That counsel informed Franco-Ardon that his petition for
review had been dismissed due to his former counsel's failure to
file a brief to our Court.
In the wake of having been so informed, on January 10,
2018, Franco-Ardon filed a motion to reopen with the BIA. He did
so on the ground that his prior counsel had provided him with
ineffective assistance of counsel by failing to file the opening
brief before this Court in his petition for review. The BIA denied
the motion to reopen on May 18, 2018. The BIA concluded that
Franco-Ardon had failed to establish either the requisite due
diligence to excuse his failure to comply with the 90-day filing
deadline for motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i),
or a "likelihood of success" regarding his ineffective assistance
of counsel claim "based on prevailing First Circuit precedent"
which the BIA did not specify. Franco-Ardon now petitions from
the BIA's denial of his motion to reopen.
II.
The government contends that we lack jurisdiction over
Franco-Ardon's petition for review because it challenges the BIA's
decision to reject a motion to reopen that is based on ineffective
assistance of counsel that was allegedly rendered only after the
BIA's earlier proceedings had come to an end. The government goes
on to contend that, even if we do have jurisdiction to review the
BIA's ruling rejecting that ground for granting the motion to
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reopen, Franco-Ardon's petition for review must be denied for
either of the two reasons that the BIA gave for denying the motion.
We proceed on the assumption that we may review the BIA's
decision to deny Franco-Ardon's motion to reopen on the merits as,
even on that assumption, the petition for review still must be
denied. See Morris v. Sessions, 891 F.3d 42, 48 (1st Cir. 2018).
We come to that conclusion even if we look past Franco-Ardon's
years-long delay in seeking the motion to reopen and focus,
instead, only on his challenge to the BIA's ruling concerning his
failure to show the "likelihood of success" that the BIA required
him to demonstrate with respect to his ineffective assistance of
counsel claim.
Although the BIA was not entirely clear as to the basis
for its "likelihood of success" requirement, the parties appear to
agree that the BIA was imposing, in effect, a prejudice
requirement, with respect to Franco-Ardon's ineffective assistance
of counsel claim, such that in the absence of him demonstrating
sufficient prejudice, his motion to reopen could be properly
denied. Franco-Ardon contends that the BIA erred in concluding
that his ineffective assistance of counsel claim could not support
his motion to reopen due to his failure to show prejudice on the
basis of two out-of-circuit precedents -- Dearinger v. Reno, 232
F.3d 1042 (9th Cir. 2000) and Gjondrekaj v. Mukasey, 269 Fed.
App'x. 106 (2nd Cir. 2008). But neither precedent supports his
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contention.
Gjonderkaj holds that the BIA has the authority to grant
a motion to reopen based on an alien's allegation that he received
ineffective assistance of counsel that resulted in the waiver of
the alien's right to petition for review of the BIA's ruling
affirming an order of removal to the Court of Appeals. 269 Fed.
App'x. at 108. But, Gjonderkaj did not address -- as it had no
occasion to do so -- whether the BIA may require the alien who
makes such a motion to show that, absent the waiver, the petition
for review was likely to succeed. Thus, Gjondrekaj, which is not
controlling in any event, provides no support for Franco-Ardon's
contention that the BIA erred in denying his motion to reopen
insofar as it did so because he failed to make that showing of
prejudice here.
Nor does Dearinger help Franco-Ardon establish that the
BIA erred in that regard. In Dearinger, the Ninth Circuit drew an
analogy to Sixth Amendment precedents that govern ineffective
assistance of counsel claims in criminal proceedings and held that
"prejudice is presumed" when an alien receives ineffective
assistance of counsel that results in the alien's waiver of the
right to seek a timely federal court challenge to a BIA ruling
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affirming an order of deportation.1 Dearinger, 232 F.3d at 1045.
But, after Dearinger, we rejected a petition for review of the
BIA's affirmance of the denial of a motion to reopen, in which the
motion had been based on the alleged ineffective assistance of the
alien's counsel in waiving an appeal to the BIA. See Hernandez v.
Reno, 238 F.3d 50, 57 (1st Cir. 2001). And, in doing so, we
declined "to extend[] the prejudice per se notion from criminal
convictions to review of waiver denials in deportations," while
expressly noting our disagreement on that score with the result in
Dearinger. Id. Thus, we cannot accept Franco-Ardon's request
that we now adopt Dearinger's holding that prejudice must be
presumed and find that the BIA erred insofar as it ruled otherwise.
Accord Bin Wang v. Att'y Gen. of U.S., 363 Fed. App'x 888, 890-91
(3d Cir. 2010) (rejecting a petitioner's argument that he received
ineffective assistance of counsel when his counsel failed to
petition for appellate review because the petitioner failed to
show a "reasonable likelihood that the result would have been
different" but for counsel's errors); Wen Fang Shi v. Holder, 349
1 Although the Court in Dearinger presumed prejudice from the
waiver caused by the ineffective assistance of counsel, it went on
to note that the petitioner also needed to establish "plausible
grounds for relief," 232 F.3d at 1046, which it found to have been
satisfied there without specifying the showing that an alien must
make to satisfy that standard. The Ninth Circuit has since
explained that Dearinger "implicitly" established a
"rebuttable . . . presumption of prejudice." Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003).
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Fed. App'x 569, 570 (2d Cir. 2009) (same).
Finally, Franco-Ardon fails to identify anything in the
record that could suffice to compel the conclusion that he has
shown the requisite prejudice from the alleged ineffective
assistance of counsel on which he bases his motion to reopen, such
as by demonstrating a likelihood of success with respect to his
original petition for review had it not been waived. Instead,
Franco-Ardon simply asserts -- in a conclusory manner -- that he
had meritorious issues to raise in that earlier petition. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (treating
arguments not developed on appeal as waived).
III.
The petition for review is denied.
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