Rudy Norato Lopez v. William Barr, U. S. Atty Gen ( 2020 )

Case: 18-60838 Document: 00515401424 Page: 1 Date Filed: 04/30/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60838 April 30, 2020
Lyle W. Cayce
RUDY OVIDIO NORATO LOPEZ, Clerk
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 650 932
Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM: *
Rudy Ovidio Norato Lopez (Norato Lopez), a native and citizen of
Guatemala, seeks review of a Board of Immigration Appeals (BIA) order
dismissing his appeal from an Immigration Judge’s (IJ) denial of his motion to
reopen and denying his motion to remand. We DENY the petition for review.
I.
Norato Lopez entered the United States on an unknown date, was
arrested for driving while intoxicated on January 29, 2013, and was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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subsequently convicted. On April 30, 2013, he was served with a Notice to
Appear (NTA), charging him with being subject to removal for entering the
United States without being admitted or paroled. Norato Lopez subsequently
appeared before the IJ, admitted the allegations, and conceded removability.
He requested relief in the form of voluntary departure. He did not request any
other relief. On September 22, 2016, the IJ issued an order granting Norato
Lopez’s request for voluntary departure.
On December 21, 2016, newly-retained counsel for Norato Lopez
submitted a motion to reopen immigration proceedings, asserting that prior
counsel was ineffective for failing to advise him of the possibility of relief in the
form of withholding of removal. Norato Lopez contended that he was
prejudiced by counsel’s failure because, but for his counsel’s failure to advise
him of the possibility of this type of relief, he would have requested withholding
of removal based on his fear of returning to Guatemala. Accompanying the
motion was an application for withholding of removal and an affidavit wherein
Norato Lopez stated that his father was “being persecuted in Guatemala at the
hands of gang members who have threatened to kill our entire family.”
The immigration court rejected the filing of the motion to reopen, stating
that it could not accept counsel’s Notice of Entry of Appearance as Attorney or
Representative Before the Immigration Court, referred to as Form EOIR-28,
until counsel filed a motion to substitute or annotated the form “to reflect an
‘on-behalf-of’ appearance or an appearance as co-counsel.” In a letter dated
January 9, 2017, counsel argued to the immigration court that the motion was
rejected in error, explaining that the regulation governing motions to reopen
expressly requires counsel to file a Form EOIR-28. Counsel also filed a second
motion to reopen, which was received on January 10, 2017.
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In ruling on this motion—and despite the fact Norato Lopez’s first
attempt at filing a motion to reopen was accompanied by the Form EOIR-28 1—
the IJ stated that this motion was rejected because “there was no Form EOIR-
28 attached.” The IJ then determined that although Norato Lopez’s second
attempted motion to reopen was properly filed, it was untimely because it was
filed outside of the applicable 90-day time period following the entry of a final
administrative order of deportation to file a motion to reopen. The IJ further
concluded that Norato Lopez did not show that he met any of the exceptions to
the time limitation set forth in 8 C.F.R. § 1003.23(b)(4).
Because the IJ found that the motion was untimely, the IJ then
evaluated Norato Lopez’s allegation that counsel was ineffective to determine
whether to exercise its sua sponte authority to reopen proceedings. The IJ
concluded that Norato Lopez failed to show prejudice resulting from counsel’s
alleged failure because he did not establish prima facie eligibility for
withholding of removal. Accordingly, the IJ declined to exercise its sua sponte
authority and denied Norato Lopez’s motion to reopen.
On appeal, the BIA affirmed the IJ’s determination that Norato Lopez’s
motion was untimely and that Norato Lopez had failed to make a prima facie
showing that he was entitled to the relief requested. The BIA also rejected
Norato Lopez’s motion to remand, filed during the pendency of his appeal,
which argued, inter alia, that under Pereira v. Sessions, 138 S. Ct. 2105 (2018),
the IJ lacked jurisdiction over his removal proceedings and that he received
inadequate notice of his removal hearing because his initial NTA did include
the hearing’s time and date. The BIA concluded that even though Norato
Lopez’s initial NTA did not specify the date of his initial removal hearing,
1 Although the Form EOIR-28 is not in the record, evidence from both the immigration
court and Norato Lopez’s counsel indicates that such a form was filed. The government does
not contend otherwise.
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notices containing this information were later sent and thus the IJ had
jurisdiction over his removal proceedings. Norato Lopez timely petitioned this
court for review.
II.
“We review the BIA’s denial of a motion to reopen . . . under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). We will not disturb the BIA’s decision “so 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. at 304. (internal quotation marks and
citations omitted). The same standard applies to a motion to remand. See
Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014).
Although our review is usually confined to the BIA’s stated rationale,
there are “limited exceptions to this rule. Even if there is a reversible error in
the BIA’s analysis, affirmance may be warranted where there is no realistic
possibility that, absent the errors, the . . . BIA would have reached a different
conclusion.” Luna-Garcia v. Barr, 932 F.3d 285, 291 (5th Cir. 2019), petition
for cert. filed No. 19-673 (alteration in original) (internal quotation marks
omitted) (quoting Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir.
2010)).
III.
In his petition for review, Norato Lopez contends that the BIA erred in
determining that: (1) his motion to reopen was untimely, (2) he failed to
establish prima facie eligibility for withholding of removal, (3) the IJ had
jurisdiction over his removal proceedings and that he received adequate notice
of these proceedings.
We address Norato Lopez’s first and second contentions together because
any error on the BIA’s part in finding that his motion to reopen was untimely
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will be deemed harmless if there is “no realistic possibility” that the BIA would
reach a different outcome absent the alleged error. Luna-Garcia, 932 F.3d at
291; see also I.N.S. v. Abdu, 485 U.S. 94, 104 (1988) (explaining that the BIA
may deny a motion to reopen because “the movant has not established a prima
facie case for the underlying substantive relief sought”). Norato Lopez’s motion
to reopen is premised on the allegation that his original counsel was ineffective
for failing to advise him of the availability of relief in the form of withholding
of removal. “Ineffective assistance of counsel can justify reopening deportation
proceedings . . . .” Rodriguez-Manzano v. Holder, 666 F.3d 948, 953 (5th Cir.
2012). To support such a claim, an alien in removal proceedings must “show
that counsel’s actions were prejudicial to his case.” 2 Mai v. Gonzales, 473 F.3d
162, 165 (5th Cir. 2006). To demonstrate prejudice, the alien 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). Since Norato Lopez
argues he is entitled to withholding of removal, he must show a “clear
probability of persecution on the basis of race, religion, nationality,
membership in a particular social group, or political opinion.” Chen v.
Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006) (internal quotation marks
omitted). He fails to make this showing.
In support of his claim that he is entitled to withholding of removal,
Norato Lopez presented only an affidavit containing two sentences addressing
his eligibility for this form of relief. The relevant portion of the affidavit states:
2The applicant must also satisfy the requirements set forth in Matter of Lozado, 19 I.
& N. Dec. 637, 639 (BIA 1988). See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (citing
Matter of Lozado, 19 I. & N. Dec. at 639). These requirements are that the alien “must (1)
provide an affidavit attesting the relevant facts, including a statement of the terms of the
attorney-client agreement; (2) inform counsel of the allegations and allow counsel an
opportunity to respond; (3) file or explain why a grievance has not been filed against the
offending attorney.” Id. (citing Matter of Lozado, 19 I. & N. Dec. at 639). Here, although the
IJ found that Norato Lopez met these Lozado requirements, the BIA did not address them.
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“Currently, my father is being persecuted at the hands of gang members who
have threatened to kill our entire family. I know if I am forced to return to
Guatemala the likelihood of me being killed is almost certain.” Norato Lopez
does not provide any “specific, detailed facts” that would demonstrate a clear
probability that he would be persecuted by gang members on account of a
protected ground. See Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir.
2012) (stating that the “alien must present ‘specific, detailed facts’” showing
the reason to fear persecution (internal quotation marks and citation omitted);
Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (same) (internal quotation
marks and citation omitted). His motion to reopen and corresponding
documents are plainly insufficient to entitle him to withholding of removal. 3
Thus, regardless of any error by the BIA with respect to the timeliness of
Norato Lopez’s motion to reopen, “there is no realistic possibility that the BIA
would reach another outcome than to dismiss h[is] appeal.” Luna-Garcia, 932
F.3d at 292. Accordingly, we affirm the BIA’s determination that petitioner
failed to make a prima facie case of entitlement for withholding of removal. 4
Id.; see Abdu, 485 U.S. at 104.
Last, Norato Lopez challenges the BIA’s refusal to remand proceedings
to the IJ, contending that the IJ lacked jurisdiction over his removal
3 In his brief, Norato Lopez also argues that he has a well-founded fear of future
persecution and that he alleged facts sufficient to demonstrate this fear. While Norato
Lopez’s motion to reopen asserted that the facts establish his eligibility for withholding of
removal, he did not argue in that motion that he was entitled to relief based on a well-founded
fear of future persecution. Because Norato Lopez did not raise this argument before the BIA,
it is unexhausted, and we thus lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1);
Wang, 260 F.3d 448, 452-53 (5th Cir. 2001).
4 To the extent the BIA’s decision was a ruling to refrain from exercising its sua
sponte authority to reopen proceedings, that ruling is discretionary, and this court lacks
jurisdiction to consider a challenge to the ruling. See Gonzalez-Cantu v. Sessions, 866 F.3d
302, 306 (5th Cir. 2017). Even if we had jurisdiction, this argument would fail for the
reasons already stated herein.
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proceedings and that he received inadequate notice of his removal hearing
because his NTA did specify the hearing’s date and time. Petitioner relies on
the Supreme Court’s decision in Pereira in which the Court held that an NTA
that fails to state when and where a noncitizen must appear for removal
proceedings is “not a ‘notice to appear’” under 8 U.S.C. § 1229(a) and thus does
not end the 10-year “period of continuous physical presence” in the United
States” that is required to be eligible for cancellation of removal. 138 S. Ct. at
2110. However, we have said that Pereira “addressed a narrow question of
whether a notice to appear that omits the time or place of the initial hearing
triggers the statutory stop-time rule for cancellation of removal.” Pierre-Paul
v. Barr, 930 F.3d 684, 689 (5th Cir. 2019). More to the point, we have
specifically rejected Norato Lopez’s arguments. In Pierre-Paul, we determined
that an NTA “was not defective” even though it did not include the date and
time of the petitioner’s initial hearing. Id. at 690. Rather, an NTA is valid
under the relevant regulations so long as it includes “the nature of the
proceedings, the legal authority for the proceedings, and the warning about the
possibility of in absentia removal.” Id. We further held in Pierre-Paul that,
“assuming arguendo” that the NTA was defective, this defect could be cured if
the immigration court subsequently mailed “a notice of hearing that contained
the time and date of the initial hearing.” Id. at 690-91.
In the instant case, the NTA specified the nature of the proceedings, the
legal authority for the proceedings, and the warning regarding in absentia
removal. Thus, the NTA was not defective. See id. at 690. Additionally,
assuming that it was defective, subsequent hearing notices included the time
and date of the removal proceedings, curing any defect and providing Norato
Lopez with proper notice under the statute governing removal proceedings.
See id. at 690-91. The BIA did not err in denying Norato Lopez’s motion to
remand. See id.
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***
For these reasons, we DENY Norato Lopez’s petition for review.
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