Santos Espinoza-Portillo v. William Barr, U. S. At ( 2019 )

Case: 18-60676 Document: 00515192374 Page: 1 Date Filed: 11/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60676
FILED
November 8, 2019
Summary Calendar
Lyle W. Cayce
Clerk
SANTOS MARIA ESPINOZA-PORTILLO,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 536 913
Before BENAVIDES, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Santos Maria Espinoza-Portillo has petitioned for review of the decision
of the Board of Immigration Appeals (BIA) denying her motion to reopen
immigration proceedings claiming persecution on account of her religious
beliefs and asserting that original counsel rendered ineffective assistance in
failing to assert that ground as a basis for relief. The BIA concluded that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-60676
Espinoza-Portillo had not shown that, but for her attorney’s errors, the result
of the proceeding would have been different.
“Motions for reopening of immigration proceedings are disfavored.” INS
v. Doherty, 502 U.S. 314, 323 (1992). We review the BIA’s denial of a motion
to reopen under a “highly deferential abuse-of-discretion standard.” Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks and
citation omitted). The BIA’s decision must be affirmed as long as it “is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Id. (internal quotation marks and citation
omitted). The BIA’s legal conclusions are reviewed de novo. Id. Findings of
fact are reviewed for substantial evidence, meaning that “this court may not
overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
A motion to reopen may be based on a claim of ineffective assistance of
counsel. Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir. 2012). The
alien must demonstrate that counsel’s unprofessional actions were prejudicial
to her case. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006). That is,
she must make a prima facie showing that, upon reopening, the relief sought
will be granted. See Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994);
Guevara Flores v. INS, 786 F.2d 1242, 1246–47 (5th Cir. 1986).
Espinoza-Portillo contends that original counsel never asserted that she
was persecuted on account of her religion; that counsel failed to file a brief in
her administrative appeal; and that the BIA erred in concluding that she was
not prejudiced by counsel’s failure to assert that she was persecuted on account
of her religion. Discrepancies between her testimony at the merits hearing and
her statements in the affidavit filed in support of the motion to reopen, she
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No. 18-60676
contends, were the product of inadequate questioning by her original counsel.
She states that she merely responded to the questions that were put to her,
and she contends that her counsel rendered ineffective assistance in failing to
elicit testimony regarding the additional information that was presented in the
affidavit.
These contentions are not supported by the record and do not show that
the BIA abused its discretion in determining that Espinoza-Portillo would not
be considered credible if her case is reopened because of the inconsistencies
and contradictions between her testimony and the statements in her affidavit.
See Singh, 436 F.3d at 487. Espinoza-Portillo has not shown that the BIA
abused its discretion in denying her motion to reopen because she did not
establish a prima facie showing of eligibility for relief. See Miranda-Lores, 17
F.3d at 85. The petition is DENIED.
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