Collin Choo v. Loretta Lynch ( 2015 )

Case: 14-60665 Document: 00513177254 Page: 1 Date Filed: 09/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60665
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 1, 2015
COLLIN ANTHONY CHOO,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 033 581
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Collin Anthony Choo, a native and citizen of the Republic of Trinidad
and Tobago, petitions this court for review of the order of the Board of
Immigration Appeals (BIA) denying his motion to reopen his immigration
proceedings based on an ineffective assistance of counsel claim. Choo argues
that his removal proceedings should have been reopened because counsel
rendered ineffective assistance by failing to establish his eligibility for
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60665 Document: 00513177254 Page: 2 Date Filed: 09/01/2015
No. 14-60665
cancellation of removal. Specifically, he contends that his counsel was
ineffective for failing to present evidence of his rehabilitation efforts.
The jurisdiction stripping provisions in 8 U.S.C. § 1252(a)(2)(C) provide
that “no court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having committed a criminal
offense” including controlled substance offenses under 8 U.S.C. § 1182(a)(2).
§ 1252(a)(2)(C); Flores-Garza v. I.N.S., 328 F.3d 797, 801-02 (5th Cir. 2003).
Choo conceded his removability based on his convictions for controlled
substance offenses. Additionally, pursuant to § 1252(a)(2)(B), this court is
statutorily barred from reviewing an immigration court’s purely discretionary
denial of cancellation of removal. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.
2007). Moreover, “where a final order of removal is shielded from judicial
review by a provision in § 1252(a)(2), so, too, is [the] refusal to reopen that
order.” Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (internal
quotation marks and citation omitted); see also Rodriguez v. Ashcroft, 253 F.3d
797, 799-800 (5th Cir. 2001) (holding that provision which prohibits review of
discretionary decisions also precludes review of motion to reopen on the same
grounds). The BIA’s original decision denied Choo discretionary relief in the
form of cancellation of removal, and the BIA also denied his motion to reopen
which sought to challenge the denial of that discretionary relief on the grounds
of ineffective assistance of counsel. Thus, we do not have jurisdiction to review
the BIA’s discretionary determination that Choo does not qualify for relief from
removal under 8 U.S.C. § 1229b(b)(1)(D).
However, § 1252(a)(2)(C) does not preclude “review of constitutional
claims or questions of law raised upon a petition for review filed with an
appropriate court of appeals.” § 1252(a)(2)(D). Thus, we have “jurisdiction to
review constitutional claims and questions of law associated with [a] claim for
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No. 14-60665
discretionary relief.” Garcia-Maldonado v. Gonzales, 491 F.3d 284, 287 (5th
Cir. 2007) (citing § 1252(a)(2)(D)).
We have assumed, without deciding, that an alien’s claim of ineffective
assistance may implicate due process concerns under the Fifth Amendment.
See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Assaad, 378 F.3d at
475-76 and n. 2. The failure to receive relief that is purely discretionary in
nature does not amount to a deprivation of a liberty interest. Assaad, 378 F.3d
at 475-76. “[W]hen there is no due process right to the ultimate relief sought,
there is no due process right to effective assistance of counsel in pursuit of that
relief.” Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
Because Choo’s claim of ineffective assistance of counsel relates solely to his
eligibility for discretionary relief, his claim does not amount to a due process
violation. See Assaad, 378 F.3d at 474-76. Contrary to Choo’s assertion, the
BIA did not misapply Gutierrez-Morales, which is in accord with Assaad.
Choo fails to raise a colorable constitutional claim or question of law;
therefore, Choo’s petition for review of the denial of his motion to reopen based
upon a claim of ineffective assistance of counsel is dismissed for lack of
jurisdiction. See Assad, 378 F.3d at 476.
PETITION DISMISSED.
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