Fernando Pinzon v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13719 June 14, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A95-220-248
FERNANDO PINZON,
CLAUDIA PATRICIA ACEVEDO, et al.,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 14, 2005)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Petitioners Fernando Pinzon (“Pinzon”), Claudia Patricia Acevedo, and
Andres F. Pinzon (collectively “Petitioners”), through counsel, petition for review
of the Board of Immigration Appeals’s (“BIA’s”) order denying their motion to
reopen and reconsider their exclusion proceedings because the Immigration Judge
(“IJ”) erroneously refused to grant asylum relief. We AFFIRM.
I. BACKGROUND
Petitioners, natives of Columbia, entered the United States in November
2000. On 23 October 2001, Pinzon applied for asylum and withholding of
removal, adding his wife and child as derivative applicants. The application noted
that the Petitioners sought asylum because they feared that if they returned to
Columbia, they would be killed.
According to the application, Pinzon’s mother worked for the United States
embassy in Columbia and upon her retirement, with more than 30 years of service
to the embassy, was granted citizenship in and moved to the United States. After
her move, Pizon claims that he and his family received threats from guerillas that
threatened to kill them because of his mother’s ties to the United States. In
November 2000, Pinzon claims he fled to the United States because their “lives
were in [] great danger.”
In January 2002, Petitioners received notices to appear from the Immigration
and Naturalization Service (“INS”) charging them with being removable. On 9
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April 2002, Petitioners appeared before an Immigration Judge (“IJ”) pro se where
the judge informed them of their right to counsel and rescheduled a follow-up
hearing for 23 July 2002. At the July hearing, Petitioners appeared claiming that
they hired an attorney, but he was not in the courtroom. The attorney had not filed
a notice of appearance, so the IJ instructed the Petitioners to make contact with
their attorney and tell him to file the notice. The IJ then set the asylum hearing for
11 June 2003.
On 11 June 2003, Petitioners attended the hearing with an attorney and
conceded removability. During the hearing, Pinzon testified that while he was in
Columbia he participated in a political organization, the Social Indigenous
Alliance, that protected the indigenous minority ideals in Columbia. Furthermore,
he testified that he was beaten by men who identified themselves as members of a
guerilla group that was looking for his mother, and that he received a written death
threat while in the United States.
The IJ denied the petition for asylum and withholding of removal finding
that Pinzon “failed to present . . . credible and sufficient evidence to establish that
he suffered past persecution on account of his political opinion,” and he failed to
“establish that he has a well-founded fear of future persecution.” Moreover, the IJ
made an adverse credibility finding, stating that Pinzon was not credible because
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he left out significant details from his asylum application and his testimony was
inconsistent.
Petitioners appealed the IJ’s denial to the Board of Immigration Appeals
(“BIA”). Although the BIA received the appeal, the Petitioners attorney failed to
file a notice of appearance with the BIA. Petitioners filed their brief in the appeal
late along with a request for extension of time because their attorney was
hospitalized for cancer. However, the BIA denied the time extension request and
subsequently affirmed the IJ’s decision on 14 April 2004 noting that the Petitioners
were considered pro se since their attorney failed to submit the notice of
appearance.
On 14 May 2004, Petitioners filed a motion to reopen and/or reconsider the
BIA’s decision. They argued that new evidence not considered by the IJ required a
reevaluation of the IJ’s findings. Among other things, they claimed that guerilla
activity in Columbia had worsened and that a 2001 United States Department of
State report, summarizing guerilla activities in Columbia, made it unreasonable for
Petitioners to safely return to Columbia. The BIA denied the motion to reopen
and/or reconsider on 8 July 2004. Petitioners now bring this appeal.
II. DISCUSSION
The Petitioners argue that the IJ and the BIA failed to consider all pertinent
evidence. They state that the evidence should have been sufficient to grant asylum,
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and that they were denied their constitutional right to an attorney when the BIA
considered them pro se because their attorney failed to file a notice of appearance.
A. Motion to Reopen/Reconsider
We review the BIA’s denial of a motion to reopen or reconsider for an abuse
of discretion. Assa’ad v. United States Attorney Gen., 332 F.3d 1321, 1340-41
(11th Cir. 2003), cert. denied, ___ U.S. ___125 S.Ct. 38 (2004); Mejia Rodriguez
v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). Judicial review is limited to
determining “whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (per curiam) (quotation omitted).
The BIA abuses its discretion when its decision “provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d
1159, 1162 (10th Cir. 2003) (quotations omitted). Motions to reopen or reconsider
are disfavored, especially in a deportation proceeding, “where, as a general matter,
every delay works to the advantage of the deportable alien who wishes merely to
remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719,
724-25 (1992).
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1. Motion to Reopen
The BIA has the authority to grant a motion to reopen if there is new
evidence that is material and was not available and could not have been discovered
or presented at the removal hearing. See 8 C.F.R. §§ 1003.2(c)(1) &
1003.23(b)(3). The movant must submit “affidavits or other evidentiary
materials.” 8 C.F.R. § 1003.2(c). However, the BIA has the discretion to deny the
motion even if the moving party has met its prima-facie burden to reopen. 8
C.F.R. § 1003.2(a). The BIA has indicated that its power to reopen cases sua
sponte is limited to exceptional circumstances and is not meant to cure filing
defects or circumvent the regulations, where enforcement might result in hardship.
See In re J-J-, 21 I & N Dec. 976, 984 (BIA 1997). Although decisions not to
reopen under § 1003.2(a) are reviewed for an abuse of discretion, § 1003.2(a) gives
the BIA discretion to reopen the proceedings “as it sees fit,” and such discretion is
so wide that it is non-reviewable. See Anin v. Reno, 188 F.3d 1273, 1279 (11th
Cir. 1999) (per curiam).
Here, the BIA did not abuse its discretion in failing to grant the Petitioners’
motion to reopen. First, the Petitioners failed to submit new evidence that was
material and not available at the hearing or submit affidavits or other evidentiary
materials. 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3). Second, the BIA has “non-
reviewable discretion” in this area. See Anin, 188 F.3d at 1279.
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2. Motion for Reconsideration
Under the regulations, a motion for reconsideration must specify “the errors
of fact or law in the prior [BIA] decision.” 8 C.F.R. § 1003.2(b)(1). When the
BIA reconsiders one of its prior decisions, “it takes itself back in time and looks at
the case as though a decision had never been entered.” Zhao v. United States Dep’t
of Justice, 265 F.3d 83, 90 (2d Cir. 2001). Thus, if it grants the motion, it
reevaluates its prior decision on the factual record as it existed at the time the
original decision was rendered. Id.The Petitioners failed to specify any “errors of fact or law” in the prior BIA
decision, but rather only argued that the evidence the Petitioners presented should
be “sufficient” to grant asylum. 8 C.F.R. § 1003.2(b)(1). As the Petitioners did
not specifically address errors of fact or law, the BIA did not abuse its discretion in
denying the Petitioners’ motion.
B. Right to an Attorney
Aliens in removal proceedings may be represented, at no expense to the
government, by counsel of the alien’s choosing who is authorized to practice in
such proceedings. Immigration & Nationality Act § 240(b)(4)(A), 8 U.S.C.
§ 1229a(b)(4)(A). There is no Sixth Amendment right to counsel in deportation
proceedings, and aliens only enjoy the right to effective assistance of counsel
pursuant to the Fifth Amendment Due Process Clause. Mejia Rodriguez, 178 F.3d
7at 1146. Due process does not automatically mean a right to counsel.
Prichard-Ciriza v. INS, 978 F.2d 219, 222 (5th Cir. 1992). The constitutional right
under the Fifth Amendment Due Process Clause requires a fundamentally fair
hearing. Dakane v. United States Attorney Gen., 399 F.3d 1269, 1273 (11th Cir.
2004) (per curiam). To establish ineffective assistance of counsel, the alien must
show that counsel’s performance harmed the fundamental fairness of the hearing.
See id. at 1273-74; Mejia Rodriguez, 178 F.3d at 1146.
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (quotation omitted). We have jurisdiction only over a “final order of
removal,” so long as the petition for review is filed within 30 days. 8 U.S.C.
§§ 1252(a)(1), (b)(1).
Here, the Petitioners argue that they were denied their constitutional right to
an attorney while appealing the merits of their asylum claim before the BIA, and
not concerning the denial of the motion for reopen/reconsider, which is at issue on
appeal and for which the Petitioners undisputably had counsel. Because the
Petitioners did not file a petition for review of the BIA’s first order, which would
have been due on 14 May 2004, 30 days after the BIA’s first order, we lack
jurisdiction to review this order. See 8 U.S.C. § 1252(b)(1); see also Stone v. INS,
514 U.S. 386, 394-95, 115 S. Ct. 1537, 1543-44 (1995) (concluding that
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“deportation orders are to be reviewed in a timely fashion after issuance,
irrespective of the later filing of a motion to reopen or reconsider,” and that “the
filing of the reconsideration motion does not toll the time to petition for review”).
In addition, even if the Petitioners had wanted to argue that they were denied their
constitutional right to an attorney based on the representation concerning the
motion to reopen/reconsider, the issue is abandoned because it is not discussed in
the Petitioners’ initial brief. See Allison v. McGhan Med. Corp., 184 F.3d 1300,
1317 n.17 (11th Cir. 1999).
III. CONCLUSION
Petitioners appeal the BIA’s denial of their motion to reopen their asylum
and withholding of removal petition. Upon a review of the record and upon
consideration of the Petitioners’ brief, we discern no reversible error. Accordingly,
we AFFIRM the BIA’s decision and DENY the petition.
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