Carlos Israel Mata Graterol v. U.S. Attorney General ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14162
Non-Argument Calendar
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Agency No. A096-529-029
CARLOS ISRAEL MATA GRATEROL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(May 20, 2013)
Before CARNES, BARKETT and MARTIN, Circuit Judges.
PER CURIAM:
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Carlos Israel Mata Graterol, a native and citizen of Venezuela, petitions for
review of the decision of the Board of Immigration Appeals (BIA), which denied
his motion to reopen his removal proceedings. In his motion to reopen before the
BIA, Mata Graterol contended that his former counsel was ineffective for advising
him against contesting the denial of his I-485 application for adjustment of status,
and for failing to adequately prepare him for his asylum proceedings.
Following the BIA’s denial of his motion, Mata Graterol petitioned for our
review of the BIA’s denial. In response, the government filed an unopposed
motion asking that we remand the case to allow the BIA to “address the impact, if
any, of relevant Eleventh Circuit legal precedent.” After we granted that motion,
the BIA issued another opinion, considering our relevant precedent and denying
Mata Graterol’s motion to reopen. Mata Graterol again petitioned for our review
of the BIA’s decision, similarly arguing that his counsel was ineffective for
advising him against challenging the denial of his application for adjustment of
status, and for failing to prepare for his asylum proceedings. After careful
consideration, we affirm the BIA’s denial of Mata Graterol’s motion to reopen.
I.
“We review the denial of a motion to reopen removal proceedings for abuse
of discretion. To the extent that the decision of the Board was based on a legal
determination, our review is de novo.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374
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(11th Cir. 2007) (citation omitted). A petitioner may file a motion to reopen based
on alleged ineffective assistance of counsel. See, e.g., Gbaya v. U.S. Att’y Gen.,
342 F.3d 1219, 1221–22 (11th Cir. 2003). “[T]o establish the ineffective
assistance of counsel in the context of a deportation hearing, an alien must
establish that [his] counsel’s performance was deficient to the point that it
impinged upon the fundamental fairness of the hearing such that the alien was
unable to reasonably present [his] case.” Dakane v. U.S. Att’y Gen., 399 F.3d
1269, 1273–74 (11th Cir. 2005) (quotation marks omitted). Mata Graterol “must
also establish prejudice, which 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.” Ali v. U.S. Att’y
Gen., 643 F.3d 1324, 1329 (11th Cir. 2011) (quotation marks omitted).
II.
First, Mata Graterol argues that his counsel was ineffective for advising him
not to challenge the denial of his application for adjustment of status. The
Department of Homeland Security (DHS) denied Mata Graterol’s application to
adjust his status after concluding that his marriage to a Cuban citizen, who was a
lawful permanent resident pursuant to the Cuban Refugee Adjustment Act, Pub. L.
No. 89-732, 80 Stat. 1161 (codified as amended at 8 U.S.C. § 1255 note), was a
fraudulent attempt to circumvent immigration laws. After Mata Graterol sought
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advice from his lawyer on contesting the denial of his application for adjustment of
status, his counsel discouraged him from pursuing this course of action, and
suggested instead that he seek relief under the asylum laws. The BIA concluded
this was a “reasonable tactical decision,” because Mata Graterol was not living
with his wife at the time, his wife was not available to provide testimony, and there
was a previous finding that Mata Graterol’s “marriage was entered into for the
primary purpose of circumventing the immigration laws of the United States.”
We agree with the BIA that Mata Graterol’s attorney made a reasonable
strategic decision in advising Mata Graterol not to contest the denial of his
application for adjustment of status, and that Mata Graterol did not make a
showing of prejudice. This decision was reasonable for more than one reason,
including DHS’s several findings regarding his fraudulent marriage and the fact
that Mata Graterol admitted to the Immigration Judge (IJ) that he had not lived
with his wife for approximately two years. The Cuban Refugee Adjustment Act—
the basis of Mata Graterol’s application to adjust his status—requires the
petitioning spouse to “reside with the qualifying Cuban alien.” Gonzalez v.
McNary, 980 F.2d 1418, 1420 (11th Cir. 1993). Thus, counsel was not ineffective
for advising Mata Graterol to pursue a different strategy. See Ali, 643 F.3d at
1329 (11th Cir. 2011) (“An attorney does not render ineffective assistance when he
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declines to make an argument that the attorney reasonably believed was . . .
doomed to fail.”) (quotation marks omitted).
III.
Second, Mata Graterol contends that his counsel was ineffective because he
“did not adequately assist him in preparing his case [for asylum].” He contends
this poor preparation resulted in his “generalized” testimony, which the IJ
concluded was not credible. However, Mata Graterol did not make a showing of
prejudice because he did not identify which details or specific evidence he would
have provided to the IJ if he had known to do so. Thus, Mata Graterol has not
shown “that there is a reasonable probability that but for the attorney’s error, the
outcome of the proceedings would have been different.” Dakane, 399 F.3d at
1274. For this reason, we cannot conclude that counsel was ineffective.
IV.
For these reasons, Mata Graterol’s petition is DENIED.
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