Jorge Palacios-Aguilar v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE PALACIOS-AGUILAR, No. 13-73915
Petitioner, Agency No. A205-321-220
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 9, 2018
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District
Judge.
Jorge Palacios-Aguilar is a native and citizen of Mexico who entered the
United States in 1988 without admission or parole. He was arrested in November
2012 for possession of methamphetamine and was referred for immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
proceedings. The immigration judge (IJ) denied Palacios-Aguilar’s requests for
cancellation of removal and, in the alternative, voluntary departure. Before the
Board of Immigration Appeals (BIA), Palacios-Aguilar argued that he had received
ineffective assistance of counsel, but the BIA rejected that claim and concluded
that Palacios-Aguilar had suffered no prejudice. The BIA also concluded that the
IJ had appropriately exercised its discretion to deny voluntary departure.
We review claims for denial of due process in deportation proceedings de
novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). And we lack
jurisdiction to review denials of voluntary departure. Tovar-Landin v. Ashcroft,
361 F.3d 1164, 1166 (9th Cir. 2004). Applying our legal standards, we deny in
part Palacios-Aguilar’s petition insofar as it relates to his claim that ineffective
assistance of counsel offended due process, and we dismiss in part his petition
insofar as it relates to the denial of voluntary departure.
Palacios-Aguilar appeared before the IJ three times. First, he appeared in
November 2012 without counsel and said that he wanted to proceed without
gaining counsel. At that time he testified that he had been convicted of possession
of methamphetamine, that he had illegally entered the country, and that he had no
fear of harm if returned to Mexico. The IJ found Palacios-Aguilar removable and
that the only relief available to him was voluntary departure. The IJ continued the
proceedings for Palacios-Aguilar to retain counsel. Second, he appeared at the
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December 2012 hearing, and he was then represented. Counsel asked for
cancellation of removal, and in the alternative, voluntary departure. The IJ
concluded that cancellation of removal was not available because of Palacios-
Aguilar’s drug possession conviction, but was inclined to grant voluntary
departure. Palacios-Aguilar asked for time to get his affairs in order, and the IJ
continued the proceedings. Third, he appeared at the January 2013 hearing, at
which time the IJ was ready to grant voluntary departure, but Palacios-Aguilar said
that he did not want to leave his children.
The IJ ordered Palacios-Aguilar removed on January 17, 2013, and Palacios-
Aguilar appealed. On October 13, 2013, the BIA affirmed the IJ’s decision and
ordered Palacios-Aguilar removed. The BIA concluded that Palacios-Aguilar had
not shown any prejudice to support his ineffective assistance of counsel claim, and
that the IJ did not err in denying him voluntary departure. Palacios-Aguilar was
then removed.1
1. Palacios-Aguilar argues that the BIA incorrectly concluded that he had not
shown prejudice. The BIA correctly concluded that although Palacios-Aguilar had
met the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), he had
not shown that he suffered prejudice from any error his counsel may have made.
1
On November 9, 2013, Palacios-Aguilar illegally reentered the United States, and
he is currently detained for the reentry.
3
See Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011) (requiring a petitioner to
show (1) that counsel failed to perform with competence and (2) that he was
prejudiced by counsel’s performance). Palacios-Aguilar does not allege that he
told his prior counsel of some fear that his counsel failed to act on. See Azanor v.
Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004). He does not allege that there is
evidence in the record that could establish fear of harm or torture. See Munoz v.
Ashcroft, 339 F.3d 950, 955 (9th Cir. 2003) (concluding that because the record
contained no evidence that could establish a well-founded fear of persecution, the
petitioner could not show that the counsel’s deficient performance prejudiced him).
It was Palacios-Aguilar’s own testimony that he had no fear of harm or torture if
returned to Mexico that precluded him from establishing prima facie eligibility for
other forms of relief. The BIA did not err in concluding that Palacios-Aguilar had
not shown prejudice.
2. We dismiss Palacios-Aguilar’s claim that the IJ erred by denying his request
for voluntary departure. Appellate courts ordinarily lack jurisdiction to review
denials of voluntary departure, including statutory eligibility for voluntary
departure because of 8 U.S.C. §§ 1252(a)(2)(B)(i) and 1229c(f), but retain
jurisdiction if the denial raises a constitutional claim or a question of law. Corro-
Barragan v. Holder, 718 F.3d 1174, 1176–77 (9th Cir. 2013).
Palacios-Aguilar’s arguments on this issue are not constitutionally based and
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do not raise questions of law. Palacios-Aguilar argues that the BIA erred by
finding that he was ineligible for pre-conclusion voluntary departure, and that the
IJ erred by relying on his testimony that he did not want to be separated from his
family in denying his request for voluntary departure. These are disputes over the
facts that the IJ and BIA found: The first questions whether the BIA incorrectly
found that he had not withdrawn his request for cancellation of removal, and the
second questions the IJ’s interpretation of his statements that “I have to come back
here, my children are here attending school, they’re studying,” and “I do not want
to be separated from my children, please.” We do not have jurisdiction to review
these factual disputes. See Corro-Barragan, 718 F.3d at 1177 (affirming that we
lack jurisdiction to review discretionary denials of voluntary departure); see also
Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).
PETITION DENIED in part, DISMISSED in part.
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