Sione v. Sessions , 700 F. App'x 786 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SITELA FAMYDOLIA SIONE,
Petitioner,
v. No. 16-9540
(Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
_________________________________
Sitela F. Sione is a Tongan citizen who has lived in the United States for more
than twenty years. After an Immigration Judge (IJ) ordered her removal, Sione
appealed to the Bureau of Immigration Appeals (BIA). The BIA dismissed her
appeal and denied her request to remand.

Pursuant to Fed. R. App. P. 43(c)(2) Loretta E. Lynch is replaced by
Jefferson B. Sessions as the United States Attorney General.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Sione now appeals to this court and makes four arguments: (1) the BIA should
have referred her case to a three-member panel; (2) the IJ’s credibility determination
is not supported by substantial evidence; (3) she was denied her due process right to a
fundamentally fair proceeding; and (4) the BIA erred by denying her motion to
remand. We dismiss her first three claims because we lack jurisdiction to review
them. And we conclude the BIA did not abuse its discretion by denying her remand
request, so we affirm its ruling.
I. Background
Sione became a lawful permanent resident in 2006 and applied for citizenship
in 2011. While evaluating her citizenship application, Citizen and Immigration
Services (CIS) discovered Sione had falsely claimed she was unmarried in her prior
application for lawful permanent resident status. Because of Sione’s false
statements, CIS denied her application for citizenship and charged her with
removability under 8 U.S.C. § 1227(a)(1)(A).1 Sione conceded she was removable,
but sought a discretionary waiver under § 1227(a)(1)(H).2
At a subsequent hearing, Sione admitted she lied about her marriage status on
her lawful permanent resident application, but claimed she followed the advice of an
1
Under that section, an alien is deportable if she was inadmissible “at the time
of entry or adjustment of status.” 8 U.S.C. § 1227(a)(1)(A). An alien who procured
a visa by fraud or misrepresentation is inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i).
2
§ 1227(a)(1)(H) gives the attorney general discretion to waive removability if
an alien meets certain criteria. As relevant here, those criteria include having a
parent or child who is a United States citizen and being otherwise admissible under
§ 1182(a). See § 1227(a)(1)(H). There is no dispute that Sione was eligible for a
waiver under this section.
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immigration officer, Manisela Sitake, who was a friend of her mother’s. According
to Sione, Sitake encouraged her to say she was unmarried because it would expedite
the application process.
The IJ expressed concern that an immigration officer would advise an
applicant to lie, so he issued a subpoena commanding Sitake to testify. Sitake
testified that he did not know Sione and denied telling her to misstate her marital
status. The IJ found Sitake’s testimony credible, and concluded that Sione’s repeated
dishonesty prevented him from finding that she “warrant[ed] a favorable exercise of
discretion for the waiver.” Admin. R. at 97.
On appeal to the BIA, Sione challenged the IJ’s decision to call Sitake to
testify, as well as the IJ’s credibility findings and his ultimate decision to deny a
waiver. Sione also asked the BIA to remand the case so she could present evidence
that her attorneys were ineffective. In an order by a single board member, the BIA
dismissed Sione’s appeal and denied her motion to remand.
II. Jurisdiction
We have jurisdiction to review a final order of removal, 8 U.S.C. § 1252(a)(1),
but we cannot review decisions committed to the Attorney General’s discretion,
see § 1252(a)(2)(B)(ii). Whether to grant a waiver of removal under § 1227(a)(1)(H)
is one such discretionary decision. See id. We therefore lack jurisdiction to review
the denial of a waiver under § 1227(a)(1)(H) unless it presents a constitutional
question or a question of law. § 1252(a)(2)(D); Schroeck v. Gonzales, 429 F.3d 947,
951 (10th Cir. 2005).
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Similarly, the failure to present a claim to the BIA deprives us of jurisdiction
to review it. Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam).
III. Analysis
A. We lack jurisdiction to review the BIA’s decision not to assign a
three-member panel.
Sione argues the BIA violated its own regulations by not referring her case to a
three-member panel. The BIA may resolve an appeal in one of three ways: (1) it can
affirm the IJ’s decision without an opinion; (2) a single board member can issue a
brief order affirming, modifying, remanding, or in some cases reversing the IJ’s
decision; or (3) the BIA can assign the case to a three-member panel if it meets
certain criteria. See 8 C.F.R. § 1003.1(e)(4)-(6). Specifically, a case may be
assigned to a three-member panel only if it presents one of six circumstances:
(i) The need to settle inconsistencies among the rulings of different
immigration judges;
(ii) The need to establish a precedent construing the meaning of laws,
regulations, or procedures;
(iii) The need to review a decision by an immigration judge or the
Service that is not in conformity with the law or with applicable
precedents;
(iv) The need to resolve a case or controversy of major national import;
(v) The need to review a clearly erroneous factual determination by an
immigration judge; or
(vi) The need to reverse the decision of an immigration judge or the
Service . . . .
§ 1003.1(e)(6).
Sione claims her case meets this criteria, and that we have jurisdiction to
review the BIA’s decision not to assign a three-member panel under Batalova v.
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Ashcroft, 355 F.3d 1246 (10th Cir. 2004). But Batalova’s reasoning does not apply
here.
In Batalova, we exercised jurisdiction to review the BIA’s decision not to
assign a three-member panel because the regulatory criteria governing the decision
was “well within our capability to review” and “we [could] directly review the IJ’s
decision, which the BIA member adopted.” Id. at 1253 & n.8. But in this case, we
cannot determine whether the criteria for assigning a three-judge panel is satisfied
without reaching the merits of the IJ’s decision to deny Sione’s application for a
waiver. And as we explained above, we lack jurisdiction to review this discretionary
decision. So, unlike Batalova, we cannot review the IJ’s decision to determine
whether the regulatory criteria are met. See Tsegay v. Ashcroft, 386 F.3d 1347, 1358
(10th Cir. 2004) (distinguishing Batalova and concluding we lacked jurisdiction to
review the BIA’s decision to affirm without an opinion under § 1003.1(e)(4) in part
because we lacked jurisdiction to review the merits of the underlying appeal).
Because we do not have jurisdiction to review the merits of the IJ’s decision, we
cannot review the BIA’s procedural decision not to assign a three-member panel.
B. We lack jurisdiction to review the IJ’s credibility assessment.
Sione argues IJ’s credibility determination is not supported by substantial
evidence. But credibility findings are findings of fact, Htun v. Lynch, 818 F.3d 1111,
1118 (10th Cir. 2016), which we lack jurisdiction to review, § 1252(a)(2)(B), (D);
Alzainati v. Holder, 568 F.3d 844, 850 (10th Cir. 2009) (“[C]hallenges directed
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solely at the agency’s discretionary and factual determinations remain outside the
scope of judicial review.”).
C. Sione failed to exhaust her due process claim.
Sione argues the IJ violated her due process right to a fundamentally fair
hearing by calling Sitake to rebut her testimony without also calling her mother, who
would have corroborated Sione’s testimony. But Sione did not make this due process
argument to the BIA, and we may not consider arguments that were not first
presented to the agency, Akinwunmi, 194 F.3d at 1341. Although there is an
exception to the exhaustion requirement for constitutional challenges the BIA lacks
authority to review, the BIA has authority to fix procedural errors, including failure
to follow due process. Id.; see Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094
(10th Cir. 2008) (“[O]bjections to procedural errors or defects that the BIA could
have remedied must be exhausted even if the alien later attempts to frame them in
terms of constitutional due process.”). Because Sione was required to give the BIA
an opportunity to correct the procedural defects she alleges, we cannot consider her
due process argument on appeal.
D. The BIA did not abuse its discretion by denying Sione’s motion to remand.
Sione asked the BIA to remand the case so she could present evidence that her
attorneys were ineffective. This was, in effect, a motion to reopen. See Alzainati,
568 F.3d at 847 n.2 (“A motion styled as a request for remand remains, in substance,
a motion to reopen.”). We review the BIA’s decision to deny a motion to reopen for
abuse of discretion. Molina v. Holder, 763 F.3d 1259, 1263 (10th Cir. 2014).
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We agree with Sione that her Fifth Amendment right to a fundamentally fair
removal proceeding includes the right to effective assistance by her attorneys. See id.
To prevail on a due process claim based on ineffective assistance, Sione had to show
her attorneys were ineffective and, as a result, she was denied a fundamentally fair
proceeding. See id. In addition, Sione’s motion to reopen was required to comply
with the screening criteria described in Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988). See Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). This
means (1) Sione had to submit an affidavit stating the relevant facts; (2) she was
required to inform her former attorneys of the allegations and give them an
opportunity to respond; and (3) because Sione accused her attorneys of violating
ethical rules, she had to state “whether a complaint has been filed with the
appropriate disciplinary authorities . . . and if not, why not.” Lozada, 19 I. & N. at
639.
The BIA found that Sione failed to comply with Lozada’s third requirement
because she did not file a bar complaint against her former attorneys and
inadequately explained why she failed to do so. Sione concedes she did not file a
complaint, but argues it was not required because her attorneys’ “conflict of interest
is plain on the face of the administrative record and both attorneys admitted the error
in their letters and have cooperated with [her].” Opening Br. at 46. But Sione cites
no authority for this argument, and the record does not support it.
First, the record does not plainly show that her attorneys had a conflict of
interest. Everyone agrees Sione’s first attorney, Laura Lui, had a personal
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relationship with Sitake, which could have given rise to a conflict. But the BIA
found that Lui withdrew as soon as she learned of the potential conflict, and was
replaced by Sione’s second attorney, Gage Herbst. Herbst and Lui belonged to the
same law firm, so a conflict by Lui could be imputed to Herbst, but it is not clear that
Lui’s relationship with Sitake “present[ed] a significant risk of materially limiting the
representation of [Sione] by the remaining lawyers in the firm.” Utah Rules of Prof’l
Conduct R. 1.10(a). So on this point, the record is not as clear as Sione suggests.
Second, contrary to Sione’s argument, her former attorneys did not admit they
had a conflict. Lui explained she “did not feel it was a conflict under the Utah Rules
of Professional Conduct to continue to represent Ms. Sione,” but nevertheless thought
“it was the right thing for [her] to withdraw.” Admin. R. at 59. And while Herbst
acknowledged that a conflict by Lui might have been imputed to him as well, he did
not admit there was a conflict in the first place. In short, Sione has failed to
persuasively explain why she did not file a disciplinary complaint against her
attorneys.
The BIA’s decision to deny Sione’s motion to reopen did not rest entirely on
her failure to comply with Lozada. It also found there was insufficient evidence that
Sione’s former attorneys provided ineffective assistance. Sione claims Lui’s conflict
of interest rendered her ineffective, but as noted above, the BIA found that she
withdrew immediately upon recognizing a potential conflict. Sione argues Herbst
was ineffective because he failed to call her mother to rebut Sitake’s testimony, but
as the BIA recognized, Herbst explained why he made this decision. According to
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Herbst, when he prepared Sione’s mother to testify at the final hearing, he discovered
her memory of the events was inconsistent with Sione’s. Believing the testimony
might cause further damage to Sione’s case, Herbst decided not to call her as a
witness. Sione does not convincingly explain why this tactical decision was
unreasonable. See Mena-Flores v. Holder, 776 F.3d 1152, 1169 (10th Cir. 2015)
(“An attorney’s objectively reasonable tactical decisions do not qualify as ineffective
assistance.”).
The BIA gave a rational explanation for denying Sione’s motion to reopen, it
correctly applied the law, and it did not depart from established policies. In short, the
BIA did not abuse its discretion. See Molina, 763 F.3d at 1263 (The BIA “abuses its
discretion when it fails to provide a rational explanation, inexplicably deviates from
established policies, lacks any reasoning, or contains only conclusory
explanations.”).
IV. Conclusion
We affirm the denial of Sione’s motion to remand. Sione’s remaining claims
are dismissed.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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