Jose Madrigales-Rodriguez v. Jefferson Sessions, I ( 2017 )

Case: 16-60376 Document: 00514117072 Page: 1 Date Filed: 08/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60376
Fifth Circuit
FILED
Summary Calendar August 15, 2017
Lyle W. Cayce
JOSE MIGUEL MADRIGALES-RODRIGUEZ, Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 689 367
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Jose Miguel Madrigales-Rodriguez (Madrigales) has petitioned for
review of the decision of the Board of Immigration Appeals (BIA) denying his
motion to reopen removal proceedings. Our review is for an abuse of discretion.
See Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005).
Madrigales wishes to petition for cancellation of removal. His original
request for such relief was denied because he had not shown 10 years of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60376 Document: 00514117072 Page: 2 Date Filed: 08/15/2017
No. 16-60376
continuous presence in the United States. Madrigales contends that he was
deprived of an opportunity to make such a showing by counsel’s unprofessional
representation.
Madrigales has waived by failing to brief the question whether the BIA
abused its discretion in determining that he was ineligible for cancellation of
removal because his motion to reopen was filed after the expiration of the
voluntary departure period. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th
Cir. 2003); see also 8 U.S.C. § 1229c(d)(1)(B); 8 C.F.R. § 1240.26(e)(2). He has
also waived the questions whether the BIA abused its discretion in concluding
that his proposed asylum application was untimely and that his proposed
application for withholding of removal was not cognizable and was without
merit. See Soadjede, 324 F.3d at 833.
As to his due process claim of ineffective assistance of counsel,
Madrigales must demonstrate that counsel’s unprofessional actions were
substantially prejudicial to his case. See Mai v. Gonzales, 473 F.3d 162, 165
(5th Cir. 2006). That is, he must make a prima facie showing that there is a
reasonable likelihood that, upon reopening, the relief sought will be granted.
See Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994).
Madrigales’s unsubstantiated allegations and self-serving assertions are
insufficient. See Ogunfuye v. Holder, 610 F.3d 303, 306-07 (5th Cir. 2010);
Miranda-Lores, 17 F.3d at 85; see also 8 U.S.C. § 1229a(c)(7)(B). Because
Madrigales has not shown that there is a reasonable likelihood that, upon
reopening, cancellation of removal would be granted, the petition for review is
DENIED. See Mai, 473 F.3d at 165; Miranda-Lores, 17 F.3d at 85.
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