Miguel Vasquez Macias v. Jefferson Sessions III

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1770
MIGUEL ANGEL VASQUEZ MACIAS,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
No. 16-1003
MIGUEL ANGEL VASQUEZ MACIAS,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration Appeals.
Submitted: December 9, 2016 Decided: March 16, 2017
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
Jaime Jasso, Westlake Village, California, for Petitioner. Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Julie Iversen, Senior Litigation
Counsel, Janette L. Allen, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Petitioner Miguel Angel Vasquez Macias (“Vasquez”) seeks review of two
orders of the Board of Immigration Appeals (the “Immigration Board”): (1) a
January 15, 2015, decision affirming an Immigration Judge’s denial of Vasquez’s
application for asylum, withholding of removal, and protection under the
Convention Against Torture; and (2) a December 8, 2015, decision denying
Vasquez’s motion to reopen his immigration proceedings due to alleged ineffective
assistance of counsel. After careful review, we conclude that Vasquez is not
entitled to relief. Accordingly, we deny both petitions.
I.
Vasquez, a native and national of Venezuela, owns real property in
Charlotte, North Carolina. On July 4, 2012, Vasquez presented himself for entry to
the United States at the Fort Lauderdale International Airport. At that time,
Vasquez held a valid B-1/B-2 visitor’s visa, which permitted Vasquez to enter the
United States as a non-immigrant for a period of not more than one year. See 8
C.F.R. § 214.2(b)(1), (2). Based on statements by Vasquez that he was afraid to
return to Venezuela, Department of Homeland Security officials determined that,
due to his credible fear of persecution in Venezuela, Vasquez intended to
immigrate to the United States—rather than visit—and consequently lacked
3
appropriate entry documents. The officials, therefore, referred Vasquez to
Immigration Court.
In the Notice to Appear filed with the Immigration Court, the Department of
Homeland Security charged Vasquez with inadmissibility under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an immigrant who lacked “a valid unexpired immigrant
visa, reentry permit, border crossing identification card, or other valid entry
document.” Vasquez subsequently applied for asylum, withholding of removal,
and protection under the Convention Against Torture.
During proceedings before the Immigration Court, the Immigration Judge
found that, at the time of his attempted entry, Vasquez intended to immigrate but
lacked a valid immigrant visa. The Immigration Judge offered to allow Vasquez to
depart the United States and therefore avoid having an order of removal on his
record. Vasquez declined the opportunity to depart because departing would have
required him to abandon his asylum application, which he did not want to do.
On January 16, 2014, the Immigration Judge denied Vasquez’s asylum
application, his request for withholding of removal, and his request for relief under
the Convention Against Torture and found Vasquez inadmissible under Section
1182(a)(7)(A)(i). Vasquez appealed that order to the Immigration Board, but in
that appeal he only challenged the denial of asylum, withholding of removal, and
relief under the Convention Against Torture—not the Immigration Judge’s
4
inadmissibility finding. The Immigration Board denied Vasquez’s appeal,
prompting Vasquez to move for the reopening of his immigration proceedings on
grounds of ineffective assistance of counsel. The Immigration Board denied the
motion, concluding that Vasquez failed to establish that his counsel performed
deficiently or that Vasquez was prejudiced by his counsel’s allegedly deficient
performance. Vasquez timely petitioned this Court to review both Immigration
Board decisions.
II.
A.
Vasquez first argues that the Immigration Board erred in denying him relief
from the Immigration Judge’s finding of inadmissibility. An Immigration Board
decision finding inadmissibility “is conclusive unless manifestly contrary to law
and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(C). “The alien has the burden
of proving that he or she is entitled to asylum, withholding of removal, or
protection under [the Convention Against Torture].” Tang v. Lynch, 840 F.3d 176,
179-80 (4th Cir. 2016). We review de novo the Immigration Board’s legal
conclusions, “accept[ing] the agency’s factual findings unless ‘any reasonable
adjudicator would be compelled to conclude to the contrary.’” Mulyani v. Holder,
771 F.3d 190, 197 (4th Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). “We may
not disturb the [Immigration Board]’s determinations on asylum eligibility so long
5
as those determinations are supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (internal quotation marks
omitted). Our review of the factual findings underlying Immigration Board
decisions denying withholding of removal and relief under the Convention Against
Torture is similarly circumscribed. Id. (applying substantial evidence standard of
review for the Immigration Board’s denial of withholding of removal); Suarez-
Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013) (applying substantial
evidence standard of review for the Immigration Board’s denial of relief under the
Convention Against Torture).
Although Vasquez appealed to the Immigration Board the Immigration
Judge’s decision denying him asylum and other forms of relief from
inadmissibility, his petition to this Court focuses entirely on the Immigration
Judge’s separate finding of inadmissibility on grounds that Vasquez intended to
immigrate yet lacked a valid immigrant visa—a finding that Vasquez did not
appeal to the Immigration Board. Vasquez concedes that he lacked a valid
immigrant visa when he presented for entry. And Vasquez never argued to the
Immigration Judge or to the Immigration Board on his direct appeal that he
intended to visit the United States, rather than immigrate. On the contrary, in his
testimony before the Immigration Judge and briefing to the Immigration Board,
Vasquez repeatedly stated that he was scared to return to Venezuela—in
6
accordance with his statements to Department of Homeland Security officials
when he sought entry—supporting the Immigration Judge’s conclusion that
Vasquez intended to immigrate, rather than visit. [A.A. 57-59, 62-63.]
Accordingly, we find no basis to disturb the finding of inadmissibility.
B.
Second, Vasquez argues that the Immigration Board erred in denying his
motion to reopen his immigration proceedings on grounds that his attorney was
ineffective. We review the Immigration Board’s denial of a motion to reopen for
abuse of discretion and “with extreme deference, given that motions to reopen are
disfavored . . . [because] every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States.” Barry v. Gonzales, 445 F.3d
741, 744–45 (4th Cir. 2006) (alteration in original) (internal quotation marks
omitted). “Thus, we will reverse the [Immigration Board]’s decision for abuse of
discretion only if it is arbitrary, capricious, or contrary to law.” Id. (internal
quotation marks omitted).
Vasquez argues that his counsel was ineffective because counsel failed to
appeal the Immigration Judge’s finding of inadmissibility on grounds that Vasquez
lacked a valid nonimmigrant visa, notwithstanding that Vasquez told the
Immigration Judge that he had a valid visa at the time he presented for entry to the
United States. To obtain relief based on ineffective assistance of counsel, Vasquez
7
had to establish, among other things, that his counsel’s allegedly deficient
performance resulted in prejudice. See Surganova v. Holder, 612 F.3d 901, 907
(7th Cir. 2010) (stating that even though the Immigration Board’s legal framework
for assessing claims that counsel provided ineffective assistance during
immigration proceedings is “in a state of flux,” regardless of the standard used, the
alien must “demonstrate prejudice resulting from the attorney’s substandard
performance”); Adeaga v. Holder, 548 F. App’x 68, 69 (4th Cir. 2013) (same).
Here, Vasquez concedes that in testifying before the Immigration Judge that
he had a valid visa when he attempted to enter the United States, he was referring
to his non-immigrant B-1/B-2 visa. Yet Vasquez’s statements upon entry revealed
that he intended to immigrate rather than to visit, rendering his B-1/B-2 non-
immigrant visa invalid. And even if Vasquez’s counsel had erred in failing to raise
on appeal to the Immigration Board Vasquez’s testimony that he had a valid visa at
the time of his attempted entry, Vasquez cannot establish prejudice because, at the
time of his appeal, Vasquez had already overstayed his B-1/B-2 visa and therefore
could not rely on that visa as a basis to challenge his removability. Accordingly,
the Immigration Board did not abuse its discretion in denying Vasquez’s motion to
reopen his immigration proceedings.
8
III.
For the foregoing reasons, we deny the petitions for review.
PETITIONS DENIED
9