Hernandez-Luis v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 25, 2012
Elisabeth A. Shumaker
Clerk of Court
DOMINGO HERNANDEZ-LUIS,
Petitioner,
v. No. 12-9518
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HARTZ, ANDERSON, and EBEL, Circuit Judges.
Petitioner Domingo Hernandez-Luis, a native of Mexico, petitions pro se for
review of an order issued by the Board of Immigration Appeals (BIA) dismissing his
appeal for lack of jurisdiction. Exercising jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1), (2)(D), we deny the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
Petitioner entered the United States without inspection in 1987. He was placed
in removal proceedings in 2008, after he came to the attention of the Department of
Homeland Security during his incarceration for traffic violations. On June 8, 2010,
he appeared in Immigration Court, along with his lawyer, for what was scheduled as
a merits hearing on his request for cancellation of removal. But instead of going
forward on his application, petitioner asked that the Immigration Judge (IJ) grant him
voluntary departure. The IJ inquired several times if this was the course of action
that petitioner wanted to pursue, and just as many times, petitioner reiterated that this
was what he wanted. Petitioner then signed an application withdrawing his
application for cancellation of removal with prejudice, which was witnessed by the
IJ.
An IJ may grant voluntary departure only if the individual meets certain
conditions, including waiving the appeal of all issues. See 8 C.F.R.
§ 1240.26(b)(1)(i); see also 8 U.S.C. § 1229c(a)(1). To that end, the IJ determined
that petitioner was eligible for voluntary departure and advised him of the
consequences of disobeying the order. The IJ also inquired if “[e]ither party want[s]
to appeal?” Admin. R. at 140. Petitioner asked about “any kind of paper work that I
would need to have checked or something once I cross the border?” Id. The IJ
explained the process and asked again if “[a]ll parties waive appeal?” Id. at 141.
The government agreed, and petitioner’s lawyer said: “Yes, Your Honor.” Id. The
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IJ granted voluntary departure within 120 days, to October 6, 2010, but entered an
alternate order of removal to Mexico in the event that petitioner failed to voluntarily
depart the United States.
Petitioner timely filed a pro se petition for review with the BIA. He argued
that his lawyer’s ineffective assistance left the IJ “little option but [to] seek
withdrawal of Petitioner’s Application for CANCELLATION with prejudice.” Id.
at 66. The BIA dismissed the petition for lack of jurisdiction on the grounds that
petitioner “has made no argument on appeal that his decision to waive appeal was not
knowing and intelligent.” Id. at 2. The BIA also concluded that “[e]ven if we
considered the ineffective assistance of counsel claim, the strategy of pursuing
voluntary departure over cancellation is not a ground[] for a claim of ineffective
assistance.” Id. at n.1. He now seeks review in this court.
In his appeal to the BIA, petitioner also argued that he was afraid to return to
Mexico because of changed country conditions. The BIA construed this argument as
a motion to reopen, but denied the motion because petitioner failed “to submit
evidence that is ‘material and was not available and could not have been discovered
or presented at the previous proceeding,’” quoting 8 C.F.R. § 1003.23(b)(4). Admin.
R. at 3. The government argues that petitioner has waived review of the BIA’s denial
of his motion to reopen because he does not address the issue on appeal. We agree.
Although we must liberally construe petitioner’s pro se brief, see Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991), he does nothing more than argue how
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increased drug violence in Mexico would affect his U.S. citizen children should they
return to Mexico with him. But petitioner does not attempt to identify any error in
the BIA’s ruling or explain why it was wrong. Thus, the argument is waived. See
Fed. R. App. P. 28 (a)(9)(A), (requiring, among other things, that an opening brief
contain an argument, with the reasons for the argument, and citations to authorities
and the record; see also Herrera-Castillo v. Holder, 573 F.3d 1004, 1010 (10th Cir.
2009) (holding that an issue that is not sufficiently raised in an opening brief is
waived).
II. DISCUSSION
“The BIA lacks jurisdiction to review an immigration judge’s decision if an
alien has knowingly and intelligently waived his right to appeal.” Kohwarien v.
Holder, 635 F.3d 174, 179 (5th Cir. 2011); see also In re Rodriguez-Diaz, 22 I. & N.
Dec. 1320, 1322 (B.I.A. 2000). “The finding of a knowing and [voluntary] waiver is
inevitably a fact-specific inquiry.” Kohwarien, 635 F.3d at 179 (internal quotation
marks omitted). We review the BIA’s legal determinations de novo and its factual
findings for substantial evidence. Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.
2009). Under the substantial evidence standard, “findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
In his opening brief, petitioner asserts that his lawyer’s deficient performance
is what led to the withdrawal of his application for cancellation of removal in
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exchange for voluntary departure. However, petitioner never mentions the waiver of
his right to appeal other than in a single conclusory sentence: “Nothing can be of
greater unfairness than the unknown and involuntary attorney caused Application
withdrawal, combined with an unknown and not agreed upon waiver of Appeal rights
serving no legitimate legal interest.” Pet’r Opening Br. at 5. This is insufficient
appellate argument.
Rule 28(a)(9)(A) of the Federal Rules of Appellate Procedure requires, among
other things, that an opening brief contain an argument, with the reasons for the
argument, and citations to authorities and the record. As such, even construing
petitioner’s pro se liberally, see Hall, 935 F.2d at 1110, he has waived any argument
that his waiver of appeal rights was not knowing and voluntary. See Herrera-
Castillo, 573 F.3d at 1010.
What petitioner argues in this court (and what he argued before the BIA) is
that his lawyer’s ineptitude caused the withdrawal of his application for cancellation
of removal. In particular, he argues that “[t]he only interest served [by enforcing the
decision] might arguabl[y] be that of an attorney riding himself of a fee disputing
client. This is not an interest to be upheld nor supported by any Court.” Pet’r
Opening Br. at 5-6.
To prevail on such a claim, petitioner “must show that the conduct of former
counsel was so egregious that it rendered [his] hearing unfair.” Matter of B-B-, 22 I.
& N., Dec. 309, 311 (B.I.A. 1998). “[T]he voluntary departure grant involves a quid
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pro quo arrangement between the alien and the [g]overnment. In return for departing
within the time afforded for voluntary departure, an alien avoids certain adverse
consequences of a removal order.” In re Zmijewska, 24 I. & N. Dec. 87, 92 (B.I.A.
2007), citing 8 U.S.C. § 1182(a)(9)(A)(ii) (citation omitted). Voluntary departure
also provides a “generous period[]” in which to prepare for the actual departure. In
re B-B-, 22 I. & N. Dec. at 311. As such, the BIA has held that “there are strong
policy reasons for strictly adhering to and enforcing voluntary departure orders, not
the least of which is to discourage dilatory behavior.” Id. at 310. Moreover,
“subsequent dissatisfaction with a strategic decision of counsel is not grounds to
reopen.” Id.
Measured against this standard, we agree with the BIA that petitioner has not
established that the conduct of his lawyer was so egregious as to result in an unfair
proceeding. First, the record reveals that the decision to withdraw the application for
cancellation of removal was made by petitioner, not his lawyer. Second, although the
lawyer had some difficulties getting the application filed and missed a court date due
to car trouble, none of this resulted in an unfair proceeding. And third, there is no
record evidence that a fee dispute had anything to do with petitioner’s decision to
withdraw the application and seek voluntary departure. Thus, petitioner has failed to
establish that he suffered any prejudice as the result of his lawyer’s conduct.
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The petition for review is DENIED. We also deny petitioner’s request to
proceed in forma pauperis.
Entered for the Court
David M. Ebel
Circuit Judge
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