Jose Pedro Juan v. U.S. Attorney General , 375 F. App'x 983 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13965 ELEVENTH CIRCUIT
APRIL 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A070-793-162
JOSE PEDRO JUAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 23, 2010)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Jose Pedro Juan petitions this Court for review of the Board of Immigration
Appeals’ (BIA) dismissal of his appeal of the Immigration Judge’s (IJ) denial of
his application for cancellation of removal, and its dismissal of his claims of
ineffective assistance of counsel at his removal hearing. On appeal, Juan argues
(1) the BIA and IJ erred in denying his application for cancellation of removal, and
(2) he received ineffective assistance of counsel before the IJ. After review, we
dismiss Juan’s petition in part and deny in part.
I.
Juan argues the BIA erred in affirming the IJ’s decision finding his children
would not suffer exceptional and unusually extreme hardship by returning to
Guatemala or being left in the United States.
We review our subject matter jurisdiction de novo. Sanchez Jimenez v. U.S.
Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).
The Attorney General may cancel removal of an alien if the alien establishes
“removal would result in exceptional and extremely unusual hardship to the alien’s
spouse, parent, or child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). Under 8 U.S.C.
§ 1252(a)(2)(B), which specifies matters not subject to judicial review concerning
discretionary relief, “no court shall have jurisdiction to review . . . (i) any judgment
regarding the granting of relief under section . . . 1229b . . . .” Thus, we lack
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jurisdiction to review the BIA’s “exceptional and extremely unusual hardship”
determinations. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222 (11th Cir. 2006).
Subsequent to our holding in Martinez, the Supreme Court considered
whether federal courts retained jurisdiction to review discretionary decisions by the
BIA in denying motions to reopen, and noted judicial review was barred on matters
where the Attorney General was given discretion under statute. Kucana v. Holder,
130 S. Ct. 827, 837 (2010). The Supreme Court stated courts retained jurisdiction
where discretion was granted by regulation, distinguishing between “decisions
specified by statute ‘to be in the discretion of the Attorney General,’ and therefore
shielded from court oversight,” and those “made discretionary by regulation,”
including motions to reopen. Id. Notably, the Court referenced § 1229b as one of
the statutory provisions entrusted by statute to the discretion of the Attorney
General. Id. at 836.
We lack jurisdiction to review the denial of Juan’s application for
cancellation of removal. Martinez, 446 F.3d at 1222; 8 U.S.C. § 1252(a)(2)(B).
The Supreme Court’s holding in Kucana does not change this result, but rather
affirms our interpretation by noting § 1229b is one provision explicitly entrusted to
the discretion of the Attorney General by statute and barred from judicial review.
Kucana, 130 S. Ct. at 829, 832, 836.
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II.
Juan contends he received ineffective assistance of counsel before the IJ
because his attorney failed to present evidence to support his arguments.
Where represented by counsel, aliens are entitled to effective assistance of
counsel under the Fifth Amendment’s due process clause. See Mejia Rodriguez v.
Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (deportation). “[A]n alien must
establish that his or her counsel’s performance was deficient to the point that it
impinged the ‘fundamental fairness’ of the hearing.” Id. However, “an attorney's
deficient representation does not deprive an alien of due process if the deficient
representation merely prevents the alien from being eligible for suspension of
deportation.” Id. at 1148. We have held the same rationale applied in precluding
relief in applications for cancellation of removal. Mohammed v. Ashcroft, 261 F.3d
1244, 1250-51 (11th Cir. 2001).
Because cancellation of removal is discretionary by statute, we cannot grant
relief for ineffective assistance of counsel. Mejia Rodriguez, 178 F.3d at 1148;
Mohammed, 261 F.3d at 1250-51. Even assuming Juan had a constitutional right
to discretionary relief from removal, he cannot establish his counsel’s performance
prejudiced him.
DISMISSED IN PART, DENIED IN PART.
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