Renata Tuslova v. U.S. Attorney General , 540 F. App'x 961 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11875
Non-Argument Calendar
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Agency No. A076-774-101
RENATA TUSLOVA,
PETR EGER,
a.k.a. Peter Eger,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 10, 2014)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Renata Tuslova and Petr Eger (collectively the “Petitioners”) seek review of
the order of the Board of Immigration Appeals (“BIA”) affirming the Immigration
Judge’s (“IJ”) denial of their motion to reconsider the IJ’s prior denial of their
motion to reopen based on ineffective assistance of counsel. We dismiss in part
and deny in part the petition for review.
I. BACKGROUND FACTS
The Petitioners are a married couple who are natives and citizens of the
Czech Republic. They each entered the United States in 1996 on a non-immigrant
visa, which they overstayed. In October 2009, the Department of Homeland
Security (“DHS”) filed Notices to Appear charging each of the Petitioners with
removability, pursuant to the Immigration and Nationality Act (“INA”)
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States longer
than permitted. The Petitioners admitted the allegations in the NTA and conceded
removability.
With the assistance of prior counsel, the Petitioners filed applications for
cancellation of removal, pursuant to INA § 240A(a), 8 U.S.C. § 1229b(a), alleging
that their U.S.-born son would suffer exception and extremely unusual hardship if
they were removed to the Czech Republic. On May 17, 2011, after a merits
hearing, the IJ denied the Petitioners’ applications for cancellation of removal,
finding that the Petitioners had failed to show that their removal would result in the
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requisite hardship to their son. The Petitioners did not file an appeal with the BIA,
making the IJ’s removal order final. See 8 C.F.R. § 1003.39 (providing that the
IJ’s decision becomes final upon the expiration of the time to appeal if no appeal is
taken).
Instead, on July 6, 2011, the Petitioners, through new counsel, filed a motion
to reopen claiming ineffective assistance of their prior counsel. The Petitioners
alleged that their prior counsel had not explained the nature of, and requirements
for, cancellation of removal and, as a result, they had not presented sufficient
evidence of the hardship to their son. The Petitioners included documents
indicating they had filed a bar complaint against their prior counsel and had
notified their prior counsel of the bar complaint.
On July 18, 2011, the IJ denied the motion to reopen. The IJ disbelieved the
Petitioners’ claim that their prior counsel failed to advise them of what was
required to obtain cancellation of removal because they had in fact presented
evidence relevant to each of the requirements for relief, including their presence in
the United States, their good moral character, and the hardship to their son.
Alternatively, the IJ concluded that the Petitioners did not show they were
prejudiced by their prior counsel’s actions because they did not point to any new
evidence of their son’s hardship that they would have submitted at the removal
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hearing if they had been given proper advice. Again, the Petitioners did not appeal
to the BIA.
On August 18, 2011, the Petitioners filed with the IJ a motion to reconsider
her prior decision denying their motion to reopen. The Petitioners argued that the
IJ had overlooked their arguments about prejudice, had applied the wrong legal
standard in considering prejudice, and had overlooked precedent regarding motions
to reopen based on ineffective assistance. The Petitioners also asserted that they
had new and material evidence of their son’s hardship. Attached to their motion
for reconsideration was: (1) their prior counsel’s response to their bar complaint, in
which he denied unprofessional representation; (2) a letter from a licensed
counselor who had treated the Petitioners’ son; (3) their son’s medical records; and
(4) a statement from their son.
In her letter, the counselor stated that the Petitioners’ son had low energy,
poor appetite, and difficulty sleeping and concentrating because he was concerned
about his family returning to the Czech Republic. The Petitioner’s son was
worried about his ability to obtain an education in the Czech Republic because of
his limited Czech language abilities. He was also afraid of being in a new
environment because, due to his premature birth, he was below average in height
and weight. The son’s medical records indicated that he was diagnosed with, and
was being treated for, short stature.
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In his statement, the Petitioners’ son stated that he was afraid for his
family’s lives because of his parents’ involvement in helping apprehend some
criminals. 1 Because of his fear, he could not sleep and had nightmares. The son
stated that he worried that his parents would be unable to find jobs in the Czech
Republic, that he would have difficulties in school because he did not read or write
Czech, and that he would be teased.
On August 31, 2011, the IJ denied the Petitioners’ motion to reconsider.
The IJ determined that the Petitioners had not demonstrated any errors of fact or
law in her prior decision. The IJ treated the Petitioners’ submission of additional
evidence as a request to sua sponte reopen the removal proceedings (because they
were number-barred from otherwise moving to reopen) and declined to do so. 2
The IJ pointed out that the son’s premature birth, short stature, and educational
disadvantages in the Czech Republic were all discussed during the merits hearing
and that there was no evidence of the counselor’s qualifications. The IJ concluded
that the son’s issues were “quite normal anxiety” in light of his parents’ uncertain
immigration status.
On September 29, 2011, the Petitioners filed a notice of appeal with the BIA
challenging the IJ’s denial of their motion for reconsideration. In their BIA brief,
1
The Petitioners had assisted Illinois and DHS officials with an investigation of an
immigration fraud scam that preyed upon Czech immigrants.
2
The Petitioners have never challenged the IJ’s finding that they were number-barred
from filing a motion to reopen and do not raise that issue in this Court.
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the Petitioners argued that they had shown prejudice from their prior counsel’s
ineffective assistance and that the IJ had applied an incorrect legal standard in
assessing prejudice. The Petitioners also submitted to the BIA copies of their
motion to reopen and motion for reconsideration that were previously filed with
the IJ.
On April 3, 2013, the BIA affirmed the IJ’s denial of the motion for
reconsideration of the denial of the motion to reopen. The BIA first stressed that it
had jurisdiction to review only the IJ’s denial of the motion for reconsideration,
citing 8 C.F.R. § 1003.39, which provides that, if no appeal is filed, an IJ’s
decision becomes final once the time to appeal expires. 3 The BIA agreed with the
IJ that the Petitioners had not identified any error of law or fact in the denial of the
motion for reconsideration.
The BIA acknowledged the Petitioners’ resubmission of the motions to
reopen and to reconsider. The BIA construed their resubmission as a motion to
remand to the IJ. The BIA denied the motion to remand because all of the
evidence attached to these motions previously was submitted to, and considered
by, the IJ, who had determined that the evidence was insufficient to justify
reopening. On April 26, 2013, the Petitioners filed this petition for review
3
The Petitioners do not challenge the BIA’s jurisdictional ruling.
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challenging the BIA’s April 3, 2013 decision affirming the IJ’s denial of the
motion for reconsideration of the denial of their motion to reopen.
II. DISCUSSION
A. Jurisdiction
The government argues that we lack jurisdiction to review several arguments
raised in the petition for review. We determine our subject matter jurisdiction de
novo. Sanchez Jiminez v. U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).
The Petitioners ostensibly seek review of the denial of their motion for
reconsideration of the denial of the motion to reopen. Most of their argument,
however, relates to the underlying decisions to deny their request for cancellation
of removal and to deny their motion to reopen. Specifically, the Petitioners
primarily contend that their removal proceedings should have been reopened
because their prior counsel was ineffective in advising them about how to obtain
cancellation of removal and that bad advice prejudiced their ability to present
sufficient proof of their son’s hardship at their removal hearing.
We conclude that we do not have jurisdiction to review the final removal
order denying the Petitioners’ application for cancellation of removal for several
reasons. First, the petition for review was filed on April 13, 2013, more than thirty
days after the entry of the May 17, 2011 final removal order, and thus is untimely
under INA § 242(b)(1), 8 U.S.C. § 1252(b)(1), with respect to that order. See Lin
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v. U.S. Att’y Gen., 677 F.3d 1043, 1045 (11th Cir. 2012) (stating that the thirty day
limit for filing a petition for review under § 1252(b)(1) “‘is mandatory and
jurisdictional’” (quoting Dakane v. U.S. Att’y Gen., 371 F.3d 771, 773 n.3 (11th
Cir. 2004)).
Second, because the Petitioners did not appeal the IJ’s removal order or
denial of cancellation of removal to the BIA, those issues are not exhausted. See
INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1251 (11th Cir. 2006). Third, even if the Petitioners had timely
filed their petition for review and had exhausted their administrative remedies with
respect to cancellation of removal, we would still lack jurisdiction to review an IJ’s
denial of cancellation of removal because it was based on the purely discretionary
determination that the Petitioners had not satisfied the exceptional and extremely
unusual hardship requirement under INA § 240A(b)(1)(D), 8 U.S.C.
§ 1229b(b)(1)(D). See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i);
Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221-23 (11th Cir. 2006) (concluding
that § 1252(a)(2)(B)(i) precludes appellate review of the purely discretionary
determination that an alien has failed to satisfy the “exceptional and extremely
unusual hardship” standard for cancellation of removal). Thus, to the extent the
Petitioners challenge the IJ’s underlying removal order denying their application
for cancellation of removal, we dismiss the petition for lack of jurisdiction.
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To the extent the Petitioners seek review of the IJ’s denial of the Petitioners’
motion to reopen based on ineffective assistance of counsel, the Petitioners did not
appeal the IJ’s denial of their motion to reopen to the BIA. Moreover, later on the
BIA, in denying the motion for reconsideration, stressed that it had jurisdiction to
review only the IJ’s denial of the motion for reconsideration. The Petitioners, in
this Court, have not challenged that jurisdictional ruling by the BIA, which is
another reason why we can only review the denial of the motion for
reconsideration.
Moreover, to the extent the Petitioners’ motion for reconsideration argued
that their son would suffer the requisite hardship, we lack jurisdiction to review
this argument. When the review of the underlying order is precluded by the INA’s
jurisdiction-stripping provisions, our “jurisdiction to entertain an attack on that
order mounted through” a motion to reopen or to reconsider is also curtailed. Patel
v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003); see also Guzman-Munoz
v. U.S. Att’y Gen., 733 F.3d 1311, 1313-14 (11th Cir. 2013). Because we lack
jurisdiction to review the IJ’s determination that the Petitioners failed to show their
son would suffer an exceptional and extremely unusual hardship, we also lack
jurisdiction to review that issue when raised in the context of a motion to reopen or
a motion to reconsider. Thus, to the extent the petition for review argues that the
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Petitioners’ motion for reconsideration established such a hardship, we dismiss
their petition.
Finally, in ruling on the motion for reconsideration, the IJ construed the
Petitioners’ submission of additional evidence as a request for sua sponte
reopening, and denied that request, too. To the extent the Petitioners challenge that
discretionary ruling, we lack jurisdiction and dismiss the petition. See Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008) (concluding that we lack
jurisdiction to review the exercise of the discretionary authority to reopen cases sua
sponte).
In sum, our jurisdiction in this case is limited to only: (1) the IJ’s denial of
the Petitioners’ motion to reconsider on the ground that they did not identify any
errors of law or fact in the denial of their motion to reopen; and (2) the BIA’s
refusal to remand the Petitioners’ case to the IJ for consideration of their
resubmitted motions to reopen and to reconsider.
B. Motion for Reconsideration of the Motion to Reopen
“A motion to reconsider shall state the reasons for the motion by specifying
the errors of fact or law in the Immigration Judge’s prior decision and shall be
supported by pertinent authority.” 8 C.F.R. § 1003.23(b)(2); see also INA
§ 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C). A motion to reconsider that “merely
republishes the reasons that failed to convince the tribunal in the first place gives
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the tribunal no reason to change its mind.” Calle v. U.S. Att’y Gen., 504 F.3d
1324, 1329 (11th Cir. 2007) (quotation marks omitted). Consequently, a motion to
reconsider that merely reiterates previously presented arguments does not specify
errors of fact or law “as required for a successful motion to reconsider.” Id. 4
Here, the IJ did not abuse its discretion in denying the Petitioners’ motion
for reconsideration. In their reconsideration motion, Petitioners asserted that the
IJ, in denying their motion to reopen, had applied the wrong legal standard for
assessing prejudice. This claim lacked merit.
To obtain reopening based on ineffective assistance, an alien must show that
“the performance of counsel [was] so inadequate that there is a reasonable
probability that but for the attorney’s error, the outcome of the proceedings would
have been different.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir.
Cir. 2005). In denying their motion to reopen, the IJ explained that the Petitioners
had not presented any evidence of their son’s hardship that they would have
submitted but for their attorney’s bad advice, and thus they had “not demonstrated
any evidence that if they had had a different attorney, the result in court would
have been any different.” The IJ applied the correct legal standard in evaluating
whether the Petitioners had shown prejudice.
4
We review for an abuse of discretion the denial of a motion to reconsider. Calle, 504
F.3d at 1328.
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The Petitioners’ reconsideration motion also argued that the IJ had
“overlooked” their prejudice argument. The Petitioners then reiterated the same
prejudice arguments they already had made in their motion to reopen, which is
insufficient. See Calle, 504 F.3d at 1329. Given that the Petitioners’ motion to
reconsider did not identify any errors of law or fact in the IJ’s denial of their
motion to reopen, the IJ did not abuse its discretion in denying the motion for
reconsideration.
B. BIA’s Denial of Remand
The Petitioners also challenge the BIA’s denial of what it construed as a
motion to remand so the IJ could consider documents the Petitioners had submitted
to the BIA. These documents consisted of the Petitioners’ previously filed motion
to reopen and motion for reconsideration and their supporting evidence. Because
the IJ had already found that the evidence supporting these motions was
insufficient to reopen the Petitioners’ case, the BIA concluded that the Petitioners
had “not demonstrated that this previously considered evidence warrants a remand
of their case.”
If an alien submits evidence to the BIA while an appeal is pending, the BIA
generally treats it as a motion to remand for further proceedings before the IJ. See
8 C.F.R. § 1003.2(c)(4), (d)(3)(iv). If the motion to remand “is really in the nature
of a motion to reopen or a motion to reconsider, it must comply with the
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substantive requirements for such motions.” Matter of Coelho, 20 I & N. Dec.
464, 471 (BIA 1992); see also Matter of Rivas, 26 I. & N. Dec. 130, 136 (BIA
2013) (stating that “the requirements for a motion to remand are essentially the
same as for a motion to reopen”). The BIA may deny a motion to reopen that fails
to introduce previously unavailable and material evidence. Chacku v. U.S. Att’y
Gen., 555 F.3d 1281, 1286 (11th Cir. 2008); see also 8 C.F.R. § 1003.2(c)(1). 5
The BIA did not abuse its discretion in refusing to remand the Petitioner’s
case to the IJ for consideration of the documents the Petitioners had submitted to
the BIA. The Petitioners do not dispute that the evidence attached to the two
motions was previously available and in fact had already been considered by the IJ
and found insufficient to warrant reopening.
Instead, the Petitioners argue that because their motion to reopen/remand
was based on ineffective assistance of counsel, they were not required to produce
new evidence. Contrary to the Petitioners’ argument, the BIA did not opine in
Matter of N-K- & V-S-, that a motion to reopen based on ineffective assistance of
counsel need not be supported by new evidence. See generally 21 I. & N. Dec.
879, 881 (BIA 1997). In fact, in Matter of N-K- & V-S-, the BIA granted the
motion to reopen because the applicants had presented new evidence, namely, a
declaration from one of the applicants about their prior counsel’s deficient
5
We review the BIA’s denial of a motion to remand, construed as a motion to reopen, for
abuse of discretion. Chacku, 555 F.3d at 1286.
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performance and a letter from the prior counsel confirming the facts in the
declaration. Id. at 880-81. Thus, Matter of N-K- & V-S- does not support the
Petitioners’ argument that they were not required to submit new evidence with
their motion to remand/reopen filed with the BIA.
Because the evidence was clearly available, and the IJ had already
considered it, the BIA did not abuse its discretion in not remanding the case back
to the IJ. Thus, we deny the petition with respect to the issues over which we have
jurisdiction.
PETITION DISMISSED IN PART AND DENIED IN PART.
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