Berzosa-Flores v. Gonzales ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-61168
Summary Calendar
____________________
JOSE BERZOSA-FLORES
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A77 739 864
_________________________________________________________________
Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Petitioner Jose Berzosa-Flores (“Berzosa”) petitions the
court for review of a final order of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen his removal
proceedings to present new evidence in support of his application
*
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that this opinion should not be published and is not precedent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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for cancellation of removal and to assert a due process challenge
to his initial hearing before the immigration judge for
ineffective assistance of counsel. In addition to filing a brief
on the merits, the Attorney General submitted a motion to strike
new evidence submitted with Berzosa’s brief, which has been
carried with the instant appeal. For the following reasons, we
GRANT the Attorney General’s motion to strike the new evidence
submitted with Berzosa’s brief and DISMISS Berzosa’s petition for
review for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Berzosa, a native and citizen of Mexico, illegally entered
El Paso, Texas without being admitted or paroled on or about
October 28, 1989. The Immigration and Naturalization Service
(“INS”)1 initiated removal proceedings against Berzosa by filing
a Notice To Appear (“NTA”) in the El Paso Immigration Court on
October 19, 2000. The NTA charged Berzosa with removability as
an alien present in the United States without being admitted or
paroled under the Immigration and Nationality Act (“INA”)
1
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
Stat. 2135 (2002). The Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security assumed the
INS’s detention, removal, enforcement, and investigative
functions. See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th
Cir. 2004). Because the events in this case began before the
reorganization, we will continue to refer to the INS in this
opinion to avoid confusion.
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§ 212(a)(6)(A)(i). 8 U.S.C. § 1182(a)(6)(A)(i) (2000). On
February 13, 2001, Berzosa appeared before the Immigration Judge
(“IJ”) with Marcela Garcia Moreno, an accredited representative
from the United Neighborhood Organization but not a licensed
attorney. At the hearing, Berzosa admitted the factual
allegations contained in his NTA and conceded removability on
those grounds. He sought a cancellation of removal under INA
§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1),2 or, in the alternative,
voluntary departure.
Following a hearing on the merits on December 13, 2002, the
IJ issued a written decision denying Berzosa’s application for
cancellation of removal but granting his request for voluntary
2
Section 1229b(b)(1) provides:
The Attorney General may cancel removal of, and
adjust to the status of an alien lawfully admitted
for permanent residence, an alien who is
inadmissible or deportable from the United States
if the alien–-
(A) has been physically present in the United
States for a continuous period of not less
than 10 years immediately preceding the date
of such application;
(B) has been a person of good moral character
during such period;
(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3)
of this title (except in a case described in
section 1227(a)(7) of this title where the
Attorney General exercises discretion to grant
a waiver); and
(D) establishes that removal would result in
exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien
lawfully admitted for permanent residence.
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departure. Specifically, the IJ found that the inconsistencies
in Berzosa’s testimony failed to establish the necessary
continuous physical presence under § 1229b(b)(1)(A).3 Moreover,
the IJ held that the medical condition of Berzosa’s twin
daughters, Joanna and Jacqueline, who are both United States
citizens, did not rise to the level of “exceptional and extremely
unusual hardship” necessary to garner relief under §
1229b(b)(1)(D). On January 14, 2003, Berzosa appealed the IJ’s
decision to the BIA.
The BIA dismissed the appeal on May 3, 2004, expressly
affirming and adopting the IJ’s determination that Berzosa failed
to meet the statutory requirements for cancellation of removal,
specifically the physical presence and hardship requirements
under § 1229b(b)(1). On June 30, 2004, Berzosa filed a motion to
reopen his removal proceedings with the BIA to consider new
evidence in support of his original application for cancellation
of removal. He also asserted that his due process rights were
violated on account of ineffective assistance of counsel at the
3
The IJ found the discrepancy between Berzosa’s live
testimony and the documentary evidence submitted to the court
concerning the school enrollment of one of his non-citizen
daughters, Blanca, to be particularly damaging to Berzosa’s
credibility. Although Berzosa maintained that he had been
continually present in the United States beginning in 1989, the
enrollment and medical records indicated that Blanca had not
transferred to a school in the United States until December 12,
1991. If Berzosa did not arrive in the United States until 1991,
he would not meet the requisite ten-year period of continuous
presence under § 1229b(b)(1)(A).
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first hearing. The BIA denied Berzosa’s motion to reopen on
November 30, 2004, finding (1) that the newly submitted evidence
was not previously unavailable as required by 8 C.F.R. §
1003.2(c);4 (2) that Berzosa failed to comply with the
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.
1988) in presenting his ineffective assistance of counsel claim
by failing to submit evidence that he had filed a bar complaint
against his prior counsel; and (3) that Berzosa had failed to
prove any prejudice resulting from his former counsel’s
performance. On December 27, 2004, Berzosa filed a timely
petition for review in this court.
II. DISCUSSION
A. Motion to Strike New Evidence
Ordinarily, this court examines a claim of ineffective
assistance of counsel as a basis to support a motion to reopen
under Matter of Lozada, 19 I & N Dec. 637, 639 (B.I.A. 1988),
aff’d, 857 F.2d 10 (1st Cir. 1988). In Goonsuwan v. Ashcroft,
252 F.3d 383, 389 (5th Cir. 2001), we stated that a petitioner,
who is seeking to reopen or reconsider his removal proceedings to
raise a claim of ineffective assistance of counsel, must provide:
1) an affidavit by the alien setting forth the relevant
facts, including the agreement with counsel regarding the
4
The BIA cannot grant a motion to reopen proceedings
unless it finds the additional evidence presented “is material
and was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
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alien’s representation; 2) evidence that counsel was
informed of the allegations and allowed to respond,
including any response; and 3) an indication that,
assuming that a violation of “ethical or legal
responsibilities” was claimed, a complaint has been
lodged with the relevant disciplinary authorities, or an
adequate explanation for the failure to file such a
complaint.
Id. The parties do not dispute, and the record demonstrates,
that Berzosa’s motion to reopen met the first and second prongs
of the Lozada inquiry. With respect to the third prong, however,
the BIA determined that the record did not contain evidence that
a complaint had been lodged with the relevant disciplinary
authorities, and Berzosa failed to provide a sufficient
explanation for his failure to do so. Indeed, our review of the
record confirms that Berzosa’s first effort to meet the third
prong of Lozada did not occur until he filed the instant appeal
and attached a letter of complaint to the Executive Office for
Immigration Review (“EOIR”) dated June 24, 2002 stating his
grievance about Moreno’s representation.
On May 20, 2005, the Attorney General filed a motion to
strike the new evidence submitted with Berzosa’s brief to this
court.5 More specifically, Berzosa’s brief attached two
additional pieces of evidence not found within the administrative
record: (1) the letter of complaint dated June 24, 2004 from
5
On May 31, 2005, this court ordered that the motion be
carried with the instant appeal. Berzosa-Flores v. Gonzales, No.
No. 04-61168 (5th Cir. May 31, 2005) (unpublished order).
Berzosa did not file a response to this motion or provide any
justification for including the new evidence in his brief.
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Berzosa to the EOIR concerning Moreno’s allegedly deficient
representation in his case; and (2) school records of Joanna and
Jacqueline discussing their special education needs.
The Attorney General correctly noted that additional
evidence outside of the administrative record cannot be
considered in this appeal. See 8 U.S.C. § 1252(b)(4)(A)
(providing that on review of orders of removal “the court of
appeals shall decide the petition only on the administrative
record on which the order of removal is based”) (emphasis added);
Goonsuwan, 252 F.3d at 390 n.15 (“It is a bedrock principle of
judicial review that a court reviewing an agency decision should
not go outside of the administrative record.”). Accordingly, we
grant the motion and confine our review to the administrative
record.
B. Jurisdiction Under 8 U.S.C. § 1252(a)(2)(B)(i)
As a preliminary matter, the Attorney General contends that
this court lacks jurisdiction to review the BIA’s denial of
Berzosa’s motion to reopen under 8 U.S.C. § 1252(a)(2)(B)(i),
which bars judicial review of “any judgment regarding the
granting of relief under section 1182(h), 1182(i), 1229b, 1229c,
or 1255 of this title.”6 Because Berzosa attempted to reopen his
6
Aside from a brief jurisdictional statement at the
beginning of his brief, Berzosa does not address the initial
question of this court’s jurisdiction to hear the appeal. Before
reaching the merits of his claim that he was deprived of due
process as a result of ineffective assistance of counsel, we must
first determine whether jurisdiction lies in this case. See
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removal proceedings to challenge the IJ’s determination that he
was not eligible for the discretionary relief under
§ 1229b(b)(1), the jurisdictional bar of § 1252(a)(2)(B)(i)
applies. See Rueda v. Ashcroft, 380 F.3d 381, 381 (5th Cir.
2004) (dismissing petition for review of hardship determination
under § 1229(b)(1)(D) for lack of jurisdiction). Even though
Berzosa raises his challenge through a motion to reopen his
proceedings rather than a direct challenge to the BIA’s
affirmance of the IJ’s merits determination, this circuit has
held that the jurisdiction-stripping provisions of § 1252(a)(2)
apply with equal force in this context. Assaad v. Ashcroft, 378
F.3d 471, 474 (5th Cir. 2004) (“[J]ust as our power to review a
final order is circumscribed by § 1252(a)(2)’s various
jurisdiction-stripping provisions, our ‘jurisdiction to entertain
an attack on that order mounted through filing of a motion to
reopen’ is equally curtailed.”) (quoting Patel v. United States,
334 F.3d 1259, 1262 (11th Cir. 2003)). Accordingly, we agree
with the Attorney General that Berzosa cannot “manufacture
jurisdiction simply by petitioning this court to review the BIA’s
denial of his motion to reopen.” Id. at 475.
Although the holding in Rueda clearly precludes review of a
discretionary hardship determination under § 1229b(b)(1)(D),
Nguyen v. Bureau of Immigration and Customs Enforcement, 400 F.3d
255, 260 (5th Cir. 2005) (noting that “the question of a federal
court’s subject matter jurisdiction may be properly raised at any
stage in litigation, including for the first time on appeal”).
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Berzosa also challenges the IJ’s finding that he failed to meet
the physical presence requirement under § 1229b(b)(1)(A). This
circuit has not extended the reach of § 1252(a)(2)(B)’s
jurisdictional bar to the determination of whether a petitioner
has been continually present for a period of not less than ten
years. See Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th
Cir. 2003) (describing the continuous physical presence
requirement as “a factual determination which is subject to
appellate review”); Gonzalez-Torres v. I.N.S, 213 F.3d 899, 901
(5th Cir. 2000). We review the IJ’s factual conclusion on the
issue of whether Berzosa established ten years of continuous
presence for substantial evidence. Garcia-Melendez, 351 F.3d at
661. Because all four requirements of § 1229b(b)(1) must be
satisfied for cancellation of removal, however, our lack of
jurisdiction to review the IJ’s determination on hardship is
fatal to Berzosa’s claim. Therefore, it would be a hollow act
for us to separately consider the IJ’s finding on continuous
presence.7
7
Although we need not reach the issue, we note that the
IJ’s determinations with respect to Berzosa’s claims of
continuous presence and “exceptional and extremely unusual
hardship” were supported by substantial evidence. The record
amply demonstrates the gaps in documentary proof and questionable
credibility of Berzosa’s statements during the hearing. We
afford “great deference to an immigration judge’s decisions
concerning an alien’s credibility.” Efe v. Ashcroft, 293 F.3d
899, 903 (5th Cir. 2002) (citing Chun v. I.N.S., 40 F.3d 76, 78
(5th Cir. 1994)). Despite several opportunities to explain the
discrepancies in his testimony, Berzosa failed to meet his burden
of establishing continuous presence. This court has been
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C. Ineffective Assistance of Counsel
Although this court lacks jurisdiction to review the BIA’s
affirmance of the IJ’s holding with respect to discretionary
relief under § 1229b(b)(1), we retain jurisdiction over “any
substantial constitutional claims.” See Balogun v. Ashcroft, 270
F.3d 274, 278 n.11 (5th Cir. 2001). As such, before we can
dismiss this appeal for lack of jurisdiction, we must consider
whether Berzosa’s claim of ineffective assistance of counsel
rises to the level of a “substantial constitutional violation.”
This court has previously found that ineffective assistance
of counsel “may implicate the Fifth Amendment’s due process
guarantee if the ‘representation afforded [the alien] . . . was
so deficient as to impinge upon the fundamental fairness of the
hearing.’” Assaad, 378 F.3d at 475 (quoting Paul v. I.N.S., 521
F.2d 194, 198 (5th Cir. 1975)); Goonsuwan, 252 F.3d at 385 n.2
(noting that ineffective assistance of counsel offends due
process when “as a result, the alien suffered substantial
prejudice”). Berzosa contends that Moreno’s representation was
deficient in two respects, both of which are directly related to
his application for cancellation of removal under § 1229b(b)(1).
First, Berzosa claims that Moreno failed to adequately prepare
and present his case to the IJ, especially with respect to her
“emphatically clear” that it “‘will not review decisions turning
purely on the immigration judge’s assessment of the alien
petitioner’s credibility.’” Chun, 40 F.3d at 78 (citing Mantell
v. I.N.S., 798 F.2d 124, 127 (5th Cir. 1986)).
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purported inability to establish Berzosa’s physical presence
requirement under § 1229b(b)(1)(A). Second, Berzosa claims that
the ineffective assistance of Moreno impaired his ability to
establish the “exceptional and extremely unusual” hardship to his
citizen daughters that would be necessary to secure discretionary
relief under § 1229b(b)(1)(D).
Because Berzosa’s ineffective assistance of counsel claim
cannot be disentangled from his effort to secure discretionary
relief, we find no deprivation of a protected liberty interest
that would give rise to a due process violation. Assaad, 378
F.3d at 475 (finding that a “motion to reopen does not allege a
violation of [the petitioner’s] Fifth Amendment right to due
process because ‘the failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a
liberty interest’”) (quoting Mejia Rodriguez v. Reno, 178 F.3d
1139, 1146 (11th Cir. 1999)). Without question, the
discretionary cancellation of removal under § 1229b is expressly
subject to the § 1252(a)(2)(B)(i) jurisdictional bar. See
Garcia-Melendez, 351 F.3d at 661. Therefore, Berzosa’s effort to
circumvent the jurisdictional defect in his petition for review
through a motion to reopen for ineffective assistance of counsel
is ultimately unavailing.
III. CONCLUSION
For the foregoing reasons, we hereby GRANT the Attorney
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General’s motion to strike the new evidence submitted with
Berzosa’s brief and DISMISS Berzosa’s petition for review for
lack of jurisdiction.
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