Miguel Silva Gamero v. William Barr, U. S. Atty Ge ( 2019 )

Case: 18-60326 Document: 00515028545 Page: 1 Date Filed: 07/10/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60326
FILED
July 10, 2019
Summary Calendar
Lyle W. Cayce
Clerk
MIGUEL SILVA GAMERO,
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 835 668
Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
Miguel Silva Gamero, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (BIA) denying his third motion to reopen
as untimely and numerically-barred. He contends the BIA abused its
discretion because it did not equitably toll the time and number limitations on
statutory motions to reopen on the basis that he received ineffective assistance
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-60326 Document: 00515028545 Page: 2 Date Filed: 07/10/2019
No. 18-60326
of counsel in his removal proceedings and during the proceedings on his first
and second motions to reopen his case.
To have a case reopened due to ineffective assistance of counsel, an alien
must “show that counsel’s actions were prejudicial to his case”. Mai v.
Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (citation omitted). The BIA
concluded Gamero had not shown prejudice, relying in part on the immigration
judge’s finding, which the BIA affirmed on appeal, that Gamero could
internally relocate within Mexico. See 8 C.F.R. § 1208.16(b)(1)(i)(B) (providing
a presumption of a threat to “the applicant’s life or freedom . . . on the basis of
the original claim” may be rebutted by evidence showing “[t]he applicant could
avoid a future threat to his or her life or freedom by relocating to another part
of the proposed country of removal and, under all the circumstances, it would
be reasonable to expect the applicant to do so”). As the Government has
pointed out, Gamero presents no challenge to this conclusion. Therefore, he
has abandoned that issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th
Cir. 2003).
Further, by abandoning any meaningful challenge to the BIA’s
determination that he did not show the requisite prejudice, Gamero has not
shown the BIA abused its discretion by denying his third motion to reopen. See
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (“[W]e review the BIA’s
denial of a motion to reopen or to reconsider under a highly deferential abuse-
of-discretion standard”. (footnote omitted)).
Gamero also asserts the BIA should have sua sponte reopened his case.
We lack jurisdiction to consider this claim. See Diaz v. Sessions, 894 F.3d 222,
228 (5th Cir. 2018) (holding that, in accordance with our precedent, claims the
BIA should have exercised sua sponte authority are unreviewable).
DISMISSED IN PART and DENIED IN PART.
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