Taveras v. Holder , 491 F. App'x 253 ( 2012 )

11-88
Taveras v. Holder
BIA
A038 930 763
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 9th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 JUAN RAFAEL TAVERAS, AKA JOSELO,
14 AKA JUAN TAVERAS,
15 Petitioner,
16
17 v. 11-88-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Earl Ian Laidlow, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Jamie M. Dowd, Senior Litigation
28 Counsel; Andrew N. O’Malley, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department of
31 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED, that the petition for review is DENIED.
4 Petitioner Juan Rafael Taveras, a native and citizen of the
5 Dominican Republic, seeks review of a November 24, 2010, decision
6 of the BIA denying his motion to reopen. In re Juan Rafael
7 Taveras, No. A038 930 763 (B.I.A. Nov. 24, 2010). We assume the
8 parties’ familiarity with the underlying facts and procedural
9 history of the case.
10 We review the BIA’s denial of a motion to reopen for abuse of
11 discretion, mindful of the Supreme Court’s admonition that such
12 motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).
14 An alien claiming ineffective assistance of counsel
15 “must . . . show prejudice resulting from counsel’s alleged
16 deficiencies.” Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir.
17 2010); see also Vartelas v. Holder, 620 F.3d 108, 113 (2d Cir.
18 2010). Because the agency reasonably concluded that Taveras failed
19 to show prejudice, the agency did not abuse its discretion in
20 denying his motion to reopen.
21 Taveras first argues that his counsel’s failure to adduce
22 testimony or a written statement from Eugenia Bautista, Taveras’s
23 live-in girlfriend, prejudiced him because Bautista would have
24 provided evidence of Taveras’s good moral character and his
2
1 rehabilitation. The agency did not abuse its discretion in
2 concluding that Taveras failed to demonstrate that he was
3 prejudiced by the absence of such a statement. During his hearing,
4 Taveras testified about his relationship with Bautista, including
5 that he resided with her and her two children, that she was aware
6 of his criminal conviction, that she supported his effort to obtain
7 cancellation of removal, and that he had no problems with her
8 children. Nothing in the immigration judge’s (“IJ”) decision
9 suggests that the IJ did not credit Taveras’s testimony in this
10 respect, and, in weighing the equities of Taveras’s case, the IJ
11 noted that Bautista was supportive of Taveras. Further, Bautista’s
12 affidavit in support of reopening provided no basis for the agency
13 to conclude that Taveras had been prejudiced by the omission of
14 Bautista’s testimony at his hearing, as the affidavit does not
15 detail how Bautista would have testified. Rather, in addition to
16 asserting her willingness to testify on his behalf, Bautista stated
17 only that she and Taveras had lived together for four years, that
18 they had a “good and solid relationship,” that he provided her
19 children with emotional support, that she believed he had been
20 rehabilitated, and that she believed he deserved cancellation of
21 removal. Much of this is repetitive of Taveras’s testimony
22 regarding his relationship with Bautista and her children, and,
23 thus, provides no basis for concluding that the IJ would have made
24 a different decision had Bautista testified.
25
3
1 Moreover, the IJ indicated that he did not believe that
2 Bautista had a clear understanding of the conduct underlying
3 Taveras’s conviction. Although Taveras argues that this
4 demonstrates that the IJ would have benefitted from Bautista’s
5 testimony, Bautista’s affidavit does not reflect that she did, in
6 fact, understand the facts of Taveras’s conviction, as the
7 affidavit does not discuss this issue. Absent evidence that
8 Bautista’s testimony would have demonstrated a full understanding
9 of Taveras’s conviction – and that this would have altered the IJ’s
10 decision regarding cancellation of removal – there is no basis to
11 conclude that the agency abused its discretion in determining that
12 Taveras was not prejudiced.
13 Second, Taveras argues that his counsel erred by failing to
14 provide the IJ with evidence that Taveras had completed sex-
15 offender-specific treatment. Taveras, however, provided the agency
16 with no evidence demonstrating that, at the time of his hearing, he
17 had actually completed any such treatment. Taveras contends that
18 the timely submission of the Klosek Clinic discharge summary –
19 which the IJ rejected as untimely filed – would have changed the
20 outcome of his proceedings because it would have demonstrated that
21 he was rehabilitated and was willing to address the personal issues
22 that led to his conviction. He similarly argues that his
23 attorney’s failure to adduce testimony from a Klosek Clinic
24 representative was prejudicial for the same reasons. There is no
25 evidence that the agency abused its discretion. In weighing the
4
1 equities of Taveras’s case, the IJ noted that Taveras had not
2 sought treatment specifically for sex offenders, and, thus, had not
3 “received or sought the best or most appropriate treatment for any
4 problems he may have had.” The IJ relied on the pre-sentence
5 report’s description of the treatment Taveras received at the
6 Klosek Clinic, which noted that Richard Klosek had diagnosed
7 Taveras with pedophilia and alcohol abuse, and that Taveras was
8 beginning group therapy at the time the pre-sentence report was
9 prepared. The pre-sentence report also noted that Taveras was not
10 participating in sex offender treatment, that Klosek had
11 recommended that he do so, and that the treatment that he was
12 receiving at the clinic was “adjunctive” to sex offender treatment.
13 The discharge summary that was rejected as untimely reflects merely
14 that Taveras underwent treatment for alcohol and substance abuse
15 issues. It does not indicate that Taveras underwent sex-offender-
16 specific treatment; nor does it contradict the pre-sentence
17 report’s statement that the treatment at the Klosek Center was
18 adjunctive to, and not a replacement for, sex offender treatment.
19 As to Taveras’s contention that his counsel should have adduced
20 testimony from a Klosek Clinic representative, he did not provide
21 the BIA with any evidence regarding how that representative would
22 have testified, and, thus, offers no basis for determining that the
23 absence of that testimony prejudiced him.
24 The record reflects that Taveras failed to offer the agency
25 any evidence either that he had completed sex-offender-specific
5
1 treatment prior to his hearing, or that his counsel’s allegedly
2 ineffective assistance resulted in that evidence being excluded by
3 the IJ. Absent such evidence, there is no basis for concluding
4 that the inclusion of the discharge summary or testimony from a
5 Klosek Clinic representative would have addressed the IJ’s concern
6 that Taveras had not obtained appropriate treatment for his
7 problems. Accordingly, there is no evidence that these alleged
8 errors were prejudicial.
9 Third, Taveras argues that his counsel erred in failing to
10 obtain a psychological evaluation regarding the likelihood that he
11 would re-offend, and whether he had been rehabilitated. Taveras
12 obtained such a report from the Consulting Project and submitted it
13 in support of his motion to reopen. The IJ’s decision in this case
14 demonstrates that the lack of evidence regarding Taveras’s
15 rehabilitation weighed against cancellation in the IJ’s weighing of
16 the equities. However, Taveras did not provide the agency with any
17 argument or explanation detailing how the report from the
18 Consulting Project – had it been provided to the IJ – would have
19 changed the outcome of his cancellation hearing. This is
20 particularly important given that the lack of evidence relating to
21 Taveras’s rehabilitation was not the sole basis for the IJ’s
22 decision to deny cancellation. Accordingly, Taveras failed to
23 demonstrate that the absence of that report was prejudicial.
24 Taveras’s arguments that the agency failed to give proper
25 weight to the Consulting Project’s report or give a full
6
1 explanation for its conclusion that the report was not a sufficient
2 basis to grant reopening, are similarly unavailing. We do not
3 “demand that the BIA expressly parse or refute on the record each
4 individual argument or piece of evidence offered by the
5 petitioner.” Jin Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
6 2008) (internal quotation marks omitted). Moreover, the agency’s
7 decision reflects that it did consider the report despite the fact
8 that Taveras submitted it without explanation or argument regarding
9 its significance. Accordingly, the agency did not abuse its
10 discretion in its consideration of the Consulting Project report.
11 Finally, Taveras argues that his counsel improperly failed to
12 object to the admission of the pre-sentence report. Taveras,
13 however, offers no basis for concluding that the failure was an
14 error. Taveras conclusorily asserts that the pre-sentence report
15 was obtained in violation of New York State law. He fails,
16 however, to explain either how that violation is evidenced by the
17 record or in what way that purported violation of state law renders
18 its use in a federal administrative proceeding improper. Further,
19 there is no basis for concluding that the IJ would have excluded
20 the pre-sentence report had counsel objected to it, as the IJ is
21 permitted to consider documents not part of the formal record of
22 conviction when determining whether to grant discretionary relief
23 from removal. See, e.g., Carcamo v. U.S. Dep’t of Justice, 498
24 F.3d 94, 98 (2d Cir. 2007). Accordingly, there is no basis for
25 concluding that Taveras was prejudiced by that failure. Because
7
1 Taveras has failed to demonstrate that he was prejudiced by any of
2 the alleged errors of his counsel, the agency did not abuse its
3 discretion in denying his motion to reopen. See Debeatham, 602 F.3d
4 at 485.
5 For the foregoing reasons, the petition for review is DENIED.
6 As we have completed our review, any stay of removal that the Court
7 previously granted in this petition is VACATED, and any pending
8 motion for a stay of removal in this petition is DISMISSED as moot.
9 Any pending request for oral argument in this petition is DENIED in
10 accordance with Federal Rule of Appellate Procedure 34(a)(2), and
11 Second Circuit Local Rule 34(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
8