Yunga v. Lynch , 617 F. App'x 97 ( 2015 )

13-2877
Yunga v. Lynch
BIA
A095 376 403
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 BOLIVAR PATRICIO YUNGA,
15 Petitioner,
16
17 v. 13-2877
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24
25 FOR PETITIONER: Matthew L. Guadagno, New York, NY.
26
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Leslie McKay, Assistant
3 Director; Margot L. Carter, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7 UPON DUE CONSIDERATION of this petition for review of a
8 decision of the Board of Immigration Appeals (“BIA”), it is
9 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
10 review is DENIED.
11 Bolivar Patricio Yunga, a native and citizen of
12 Ecuador, seeks review of a July 2, 2013, decision of the BIA
13 denying reopening. In re Bolivar Patricio Yunga, No. A095
14 376 403 (B.I.A. Jul. 2, 2013). We assume the parties’
15 familiarity with the underlying facts and issues presented
16 for review and the procedural history of this case.
17 We review the BIA’s denial of reopening for abuse of
18 discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
19 2006)(per curiam). Reopening requires a showing of the
20 facts to be proven at a hearing and the submission of new,
21 previously unavailable, material evidence. 8 U.S.C.
22 § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Moreover, to
23 obtain reopening based on ineffective assistance of counsel,
24 an alien must show a violation of due process. A claim
25 raised by an alien in immigration proceedings is governed by
2
1 the Fifth Amendment because the proceedings are civil.
2 Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010)
3 (distinguishing Fifth Amendment and Sixth Amendment
4 ineffective assistance of counsel claims). Yunga’s reliance
5 on Sixth Amendment case law is, therefore, unavailing.
6 “[T]o prevail on a claim of ineffective assistance of
7 counsel, [the petitioner] must show that his counsel’s
8 performance was so ineffective as to have impinged upon the
9 fundamental fairness of the hearing in violation of the
10 fifth amendment due process clause.” Rabiu v. INS, 41 F.3d
11 879, 882 (2d Cir. 1994) (internal quotation marks omitted).
12 “[T]o show a deprivation of fundamental fairness, [an alien]
13 must allege facts sufficient to show 1) that competent
14 counsel would have acted otherwise, and 2) that he was
15 prejudiced by his counsel’s performance.” Romero v. INS,
16 399 F.3d 109, 112 (2d Cir. 2005) (internal quotation marks
17 and citation omitted).
18 Yunga faults his counsel at his merits hearing for
19 failing to question him on a number of issues, ranging from
20 his family members and alcoholism, to his payment of taxes
21 and reasons for frequenting prostitutes. A review of the
22 merits hearing reveals that Yunga testified about his
3
1 extended family in the United States, his wife and daughter
2 in Ecuador, his payment of taxes, his alcoholism, and his
3 criminal record. As Yunga does not identify how he would
4 have responded if he had been asked different questions, and
5 he has not shown that he was prejudiced by counsel’s
6 performance. Furthermore, while Yunga argues that his
7 counsel should have focused on his rehabilitation from
8 alcoholism, the record shows that counsel, on direct and re-
9 direct examination, drew out favorable testimony that Yunga
10 has been sober since 2005 and had advised others of the
11 dangers of alcoholism. As the IJ’s decision considered
12 these facts, Yunga’s “new evidence” (a 2013 toxicology
13 report and a 2013 doctor’s report that established his
14 sobriety) would not alter the result in the case. The
15 thrust of the IJ’s finding that Yunga did not show he had
16 rehabilitated himself was premised on Yunga’s lengthy
17 criminal history, including his conviction while in
18 immigration proceedings.
19 Yunga also cites his counsel’s failure to call
20 character witnesses. The record, however, contains eight
21 favorable affidavits or letters. Yunga emphasizes that the
22 IJ commented that two submitted statements would be “given
4
1 diminished consideration if [the individuals were] not
2 presented as witnesses.” However, the agency did not cite
3 the lack of witnesses as a reason for denying adjustment.
4 Again, Yunga has not shown prejudice. Because Yunga did not
5 present evidence that would alter the result in his case, he
6 has not demonstrated the prejudice required to reopen based
7 on his hearing counsel’s alleged ineffectiveness.
8 As to his appellate counsel, Yunga argues that she
9 failed to comply with the procedural requirements set forth
10 in In re Lozada, 19 I&N Dec. 637 (BIA 1998). Additionally,
11 Yunga alleges she should have presented “a counter-report
12 from a psychologist . . . to explain that [he] did not need
13 to attend AA meetings.” While it is true that Yunga’s
14 appellate counsel did not comply with the Lozada
15 requirements, Yunga has failed to show that his hearing
16 counsel was ineffective (as discussed above). Therefore, he
17 cannot show prejudice. In addition, even if his appellate
18 counsel had submitted a psychologist report to the BIA on
19 direct appeal, the BIA is prohibited from considering new
20 evidence in the first instance. 8 C.F.R.
21 § 1003.1(d)(3)(iv). Thus, counsel was not ineffective for
22 failing to submit evidence that the BIA could not consider.
23
5
1 Altogether, Yunga has not demonstrated that the BIA
2 abused its discretion by denying reopening because he has
3 not established the prejudice required to establish
4 ineffective assistance of counsel. For the foregoing
5 reasons, the petition for review is DENIED. As we have
6 completed our review, any stay of removal that the Court
7 previously granted in this petition is VACATED, and any
8 pending motion for a stay of removal in this petition is
9 DISMISSED as moot. Any pending request for oral argument in
10 this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
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