Dobrik v. Garland ( 2022 )

20-415(L)
Dobrik v. Garland
BIA
A205 500 133
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 18th day of May, two thousand twenty-two.
PRESENT:
DENNIS JACOBS,
ROBERT D. SACK,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
PAVOL DOBRIK,
Petitioner,
20-415(L),
v. 20-2580(Con)
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Kevin L. Dixler, Chicago, IL.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; Leslie McKay,
Acting Assistant Director; Holly
M. Smith, Senior Litigation
Counsel, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DENIED.
Petitioner Pavol Dobrik, a native and citizen of
Slovakia, seeks review of (1) a January 3, 2020 decision of
the BIA, denying a motion to reopen, and (2) a July 20, 2020
decision, denying a subsequent motion to reconsider and
reopen. In re Pavol Dobrik, No. A205 500 133 (B.I.A. Jan. 3
& July 20, 2020). We assume the parties’ familiarity with
the underlying facts and procedural history.
Dobrik argues that the BIA erred in denying his motions
to reopen and reconsider his claim for cancellation of removal
under 8 U.S.C. § 1229b(b)(1) because he established that his
former counsel was ineffective by failing to present evidence
on the hardship Dobrik’s removal would cause his U.S. citizen
children. Our jurisdiction is limited to constitutional
claims and questions of law when we review the denial of
motions to reopen and reconsider related to the issue of
hardship required for cancellation of removal. See 8 U.S.C.
§ 1252(a)(2)(B), (D); see also Barco-Sandoval v. Gonzales,
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516 F.3d 35, 38–40 (2d Cir. 2008) (reaffirming that
jurisdiction to review a hardship determination for
cancellation is limited by Section 1252(a)(2)(B)); Sepulveda
v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005) (holding that the
jurisdictional limitation for discretionary denials of relief
applies equally to denials of motions to reopen or reconsider
that relief).
We have jurisdiction to consider Dobrik’s ineffective
assistance of counsel claim because it is a constitutional
claim. See Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008)
(“We are not barred from exercising jurisdiction over an
ineffective assistance of counsel claim . . . merely because
in determining whether the petitioner was prejudiced by
counsel’s errors we would have to consider whether the
agency’s underlying discretionary determination might have
been different had no errors occurred.”). When examining
“denied motions to reopen, we review de novo constitutional
claims and questions of law.” Luna v. Holder, 637 F.3d 85,
102–03 (2d Cir. 2011).
To demonstrate ineffective assistance, a movant must show
both “that competent counsel would have acted otherwise,” and
“that he was prejudiced by counsel’s performance.” Rabiu v.
3
INS, 41 F.3d 879, 882–83 (2d Cir. 1994) (quoting Esposito v.
INS, 987 F.2d 108, 111 (2d Cir. 1993)). Prejudice requires
that a movant “make a prima facie showing that he would have
been eligible for the relief and that he could have made a
strong showing in support of his application.” Rabiu, 41
F.3d at 882; see also Scarlett v. Barr, 957 F.3d 316, 326 (2d
Cir. 2020).
Here, in denying both the motion to reopen and the motion
to reconsider, the BIA concluded that Dobrik had not shown
the requisite prejudice because the evidence he argued his
counsel should have submitted would not have changed the
ultimate outcome—namely, that Dobrik failed to establish that
his removal would cause his U.S. citizen children the
“exceptional and extremely unusual hardship” required for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(D).
Reviewing the record as whole, we agree with the BIA’s
determinations that Dobrik failed to demonstrate that the
outcome would have changed had his counsel submitted the
additional evidence Dobrik provided and, accordingly, we
conclude that Dobrik has not shown that he was prejudiced by
the alleged ineffective assistance of counsel. Insofar as
Dobrik argues that we should apply a less stringent standard
4
for prejudice, see Petitioner’s Br. at 20–21, 28–29, or that
he deserves another hearing “regardless of the outcome,” see
id. at 27, we are bound by the precedential decisions
establishing this prima facie standard for prejudice and thus
decline Dobrik’s request that we apply a less stringent
standard, see Dale v. Barr, 967 F.3d 133, 142 (2d Cir.
2020)(“It is a longstanding rule of our Circuit that a three-
judge panel is bound by a prior panel's decision until it is
overruled either by this Court sitting en banc or by the
Supreme Court.” (internal quotation marks omitted)).
For the foregoing reasons, the petitions for review are
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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