Tomasa Ayasta v. U.S. Attorney General , 170 F. App'x 115 ( 2006 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                     FILED
    ________________________          U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    March 13, 2006
    No. 05-13251                    THOMAS K. KAHN
    Non-Argument Calendar                   CLERK
    ________________________
    BIA Nos. A95-907-699 & A95-907-705
    TOMASA AYASTA,
    JUAN CARLOS CERRON,
    Petitioners,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    _________________________
    (March 13, 2006)
    Before BLACK, CARNES and PRYOR, Circuit Judges.
    PER CURIAM:
    Peruvian citizens Tomasa Ayasta and Juan Carlos Cerron petition for review
    of the Board of Immigration Appeals’ (BIA’s) order denying their motion to
    reconsider the motion to reopen their removal hearing.1 The Petitioners assert the
    BIA should have reopened their removal hearing because they suffered ineffective
    assistance of counsel when they appeared before the Immigration Judge (IJ) for
    their removal hearing. Petitioners also assert their due process rights were violated
    by: (1) the IJ's behavior in suggesting Petitioners accept voluntary departure
    because their asylum claim was legally tenuous before hearing Ayasta's testimony;
    (2) the failure of the IJ to order simultaneous translation of the IJ's discussion with
    counsel; and (3) the BIA’s failure to order a transcript to review their appeal. We
    deny the petition.
    1
    As an initial matter, we must determine the scope of this appeal. While we generally have
    jurisdiction to review final orders of removal, the petition for review must be filed within 30 days
    of the date of the final order of removal. 
    8 U.S.C. § 1252
    (a)(1), (b)(1). “Since the statutory limit
    for filing a petition for review in an immigration proceeding is ‘mandatory and jurisdictional,’ it is
    not subject to equitable tolling.” Dakane v. U.S. Att’y Gen., 
    399 F.3d 1269
    , 1272 n.3 (11th Cir.
    2005). A motion to reconsider filed with the BIA does not suspend the finality of the underlying
    BIA order and does not toll the review period. Stone, 
    115 S. Ct. 1537
    , 1549 (1995) (construing the
    former 90-day period for filing a petition for review).
    The BIA denied Petitioners’ motion to reconsider on May 17, 2005. Petitioners filed this
    instant petition June 13, 2005, bringing that motion within our jurisdiction. See 
    8 U.S.C. § 1252
    (a)(1), (b)(1). The motion to reopen, however, was denied on March 22, 2005. No notice of
    appeal was filed before the time to appeal that motion expired on April 21, 2005. See 
    id.
     Thus, we
    only consider whether the BIA erred in failing to reconsider the motion to reopen, and the motion
    to reopen is not properly before us.
    2
    I. DISCUSSION
    A. Motion for reconsideration
    We review the BIA’s denial of a motion for reconsideration for an abuse of
    discretion. Assa'ad v. U.S. Att’y Gen., 
    332 F.3d 1321
    , 1341 (11th Cir. 2003), cert.
    denied, 
    125 S. Ct. 38
     (2004). After the BIA has affirmed an IJ’s ruling, the alien
    may seek reconsideration on the ground the BIA has made a legal or factual error.
    See 8 U.S.C. § 1229a(c)(6);2 
    8 C.F.R. § 1003.2
    (b)(1). A motion for
    reconsideration must specify the errors of law or fact in the previous order and be
    supported by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C).
    Pursuant to the Due Process Clause, “[a]liens enjoy the right to the effective
    assistance of counsel in deportation proceedings.” Mejia Rodriguez v. Reno, 
    178 F.3d 1139
    , 1146 (11th Cir. 1999). The BIA has required that, when filing a motion
    to reopen based on a claim of ineffective assistance of counsel, the alien must: (1)
    submit an affidavit attesting to the relevant facts; (2) inform former counsel of the
    allegations and allow an opportunity to respond; and (3) if asserting the prior
    counsel’s handling of the case violated ethical or legal responsibilities, state
    whether a complaint has been filed with the appropriate disciplinary authorities,
    and, if not, why not. Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988). The
    2
    8 U.S.C. § 1229a(c)(6) was amended and renumbered by § 101(d) of the REAL ID Act,
    effective May 11, 2005. Pub. L. 109-13, 
    119 Stat. 231
    .
    3
    BIA does not abuse its discretion by requiring aliens to meet the three procedural
    requirements of Lozada. Gbaya v. U. S. Att’y Gen., 
    342 F.3d 1219
    , 1223 (11th Cir.
    2003). A petitioner seeking to reopen his proceedings due to ineffective assistance
    of counsel must show prejudice. Dakane, 
    399 F.3d at 1274
    . “Prejudice 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.
    Because Petitioners failed to comply with the BIA’s procedural requirements
    for establishing ineffective assistance of counsel, and we have held the BIA does
    not abuse its discretion by requiring aliens to meet the procedural requirements, the
    BIA did not abuse its discretion in failing to reconsider its refusal to reopen the
    Petitioners’ removal hearing based on ineffective assistance of counsel. Further,
    the BIA did not abuse its discretion in finding that, even if Petitioners complied
    with Lozada and the BIA examined the merits, it would not have found the
    prejudice necessary to establish ineffective assistance of counsel. Petitioners based
    their ineffective assistance of counsel claim on the fact counsel dissuaded them
    from testifying at the hearing. Even if they had testified, based on their admittedly
    tenuous asylum claim, they would not have received asylum. Accordingly, they
    suffered no prejudice from counsel’s advice.
    4
    B. Due process
    We review constitutional claims de novo. Lonyem v. U.S. Att’y Gen., 
    352 F.3d 1338
    , 1341 (11th Cir.2003). To establish a due process claim, aliens must
    show the asserted errors caused them substantial prejudice. 
    Id.
    First, the IJ’s behavior at the hearing did not rise to the level of substantial
    prejudice. Petitioners allege the IJ stated she had read the submitted documents
    and reviewed the evidence, and she could not find a nexus between the persecution
    of Ayasta and a protected ground. The IJ then allowed them to discuss options
    with their lawyer. After receiving counsel by their attorney that it was in their best
    interest to avoid a removal order because of the circumstances, Petitioners elected
    to withdraw their application for asylum. Petitioners concede their chance to
    demonstrate “the political nexus are legally tenuous.” Thus, Petitioners have not
    shown the IJ’s behavior caused them substantial prejudice.
    Secondly, Petitioners have not demonstrated a failure to translate the
    conversation between the IJ and their counsel constituted substantial prejudice.
    The fact the IJ relied on counsel to explain what was happening to Petitioners was
    not unreasonable. It was not a failure to translate that caused Ayasta to choose not
    to testify, it was counsel’s advice, and as discussed above, the ineffective
    assistance claim is lacking. There is no claim that, but for the lack of translation,
    the IJ would have granted asylum. Instead, Petitioners claim that, but for the lack
    5
    of translation, they would have understood their claim was tenuous, not denied,
    and they would have chosen to testify, which might have convinced the IJ to grant
    them asylum. The failure to translate is too attenuated from the IJ’s failure to grant
    asylum to constitute substantial prejudice.
    Finally, the BIA’s failure to order and review a transcript on Petitioners’
    appeal of the motion to reopen does not create a constitutional violation. Not
    receiving asylum or being misled, as they claim they were, into pursuing voluntary
    departure at the removal hearing, was not affected by the BIA’s failure to have a
    transcript to review. Further, it is the BIA’s practice not to prepare transcripts for
    an appeal from an IJ’s denial of a motion to reopen. Also, the BIA’s review was
    seemingly premised on the assumption Petitioners’ allegations were true, thus there
    was no prejudice from not having a transcript.
    II. CONCLUSION
    The BIA did not abuse its discretion in denying Petitioners’ motion to
    reconsider. Additionally, Petitioners’ due process rights were not violated.
    PETITION DENIED.
    6