Christian Banaga-Alcaraz v. Loretta Lynch

Case: 15-60516 Document: 00513342828 Page: 1 Date Filed: 01/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________ United States Court of Appeals
Fifth Circuit
No. 15-60516 FILED
Summary Calendar January 14, 2016
___________________ Lyle W. Cayce
Clerk
CHRISTIAN BANAGA-ALCARAZ,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
_______________________
Petition for Review of an Order of the
Board of Immigration Appeals
(A094 068 636)
_______________________
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Christian Banaga-Alcaraz, a native of Mexico, was admitted to the
United States in 2002 on a B1/B2 visa authorizing him to remain in the country
for six months. Without authorization, he remained in the United States well
beyond that period, residing in Arizona. In April 2013, Banaga-Alcaraz was
stopped in Texas for speeding and driving without a license, taken into custody,
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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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No. 15-60516
and turned over to Immigration and Customs Enforcement, which initiated
removal proceedings shortly thereafter. Banaga-Alcaraz conceded that he was
removable but sought cancellation of removal and adjustment of status under
8 U.S.C. § 1229b(b)(1) (governing nonpermanent residents). An Immigration
Judge (IJ) found that, though he met all other requirements for cancellation of
removal, Banaga-Alcaraz had not shown that his U.S. citizen father and legal
permanent resident mother, both living in Arizona, would suffer “exceptional
and extremely unusual hardship” if he were removed, as required by
§ 1229b(b)(1)(D). Accordingly, in September 2013, the IJ denied Banaga-
Alcaraz’s application and ordered removal. The IJ also denied voluntary
departure, noting that Banaga-Alcaraz had not requested it.
Banaga-Alcaraz appealed to the Board of Immigration Appeals (BIA),
arguing that the IJ abused its discretion in denying a continuance that would
have allowed his parents to testify at the removal hearing, and that the IJ
further erred in determining that the hardship requirement had not been
satisfied. The BIA dismissed Banaga-Alcaraz’s appeal in August 2014.
Banaga-Alcaraz petitioned this court to review the merits of that dismissal,
and we summarily denied the petition. Banaga-Alcaraz v. Holder, No. 14-
60626 (5th Cir. Apr. 24, 2015). While that petition was pending before our
court, Banaga-Alcaraz several times asked the BIA to reopen or reconsider its
decision, arguing that his counsel at the removal hearing had been ineffective.
The BIA issued a series of orders in November 2014, December 2014, March
2015, and June 2015, each declining to revisit its dismissal of Banaga-Alcaraz’s
appeal or reconsider its previous orders. Banaga-Alcaraz now petitions this
court to review the BIA’s June 2015 order denying reconsideration of its March
2015 order.
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Banaga-Alcaraz challenges the fact that the BIA’s March 2015 order
incorporated reasoning from its November 2014 and December 2014 orders.
Because Banaga-Alcaraz did not argue this point before the BIA in his motion
for reconsideration, it is unexhausted and we have no jurisdiction to consider
it. 8 U.S.C. § 1252(d)(1); see Omari v. Holder, 562 F.3d 314, 319–21 (5th Cir.
2009). We therefore DISMISS in part the petition for lack of jurisdiction.
Banaga-Alcaraz also raises several arguments centering on the BIA’s
treatment of his claim that his counsel at the removal hearing was ineffective
for failing to request voluntary departure under 8 U.S.C. § 1229c. Even
assuming that aliens have a due process right to counsel in connection with
seeking voluntary departure, Banaga-Alcaraz’s ineffective-assistance
argument can succeed only if he was prejudiced by any deficient performance.
De Zavala v. Ashcroft, 385 F.3d 879, 884 (5th Cir. 2004). To establish prejudice,
Banaga-Alcaraz must make a prima facie showing of eligibility for voluntary
departure. See Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir. 1997). As the BIA
found, Banaga-Alcaraz did not “establish[] by clear and convincing evidence
that [he] has the means to depart the United States and intends to do so.”
§ 1229c(b)(1)(D). Accordingly, he cannot establish prejudice and his arguments
rooted in an ineffective assistance of counsel claim fail.
We DENY Banaga-Alcaraz’s motion to transfer the petition for review to
mediation. Because summary disposition “is generally reserved for cases in
which the parties concede that the issues are foreclosed by circuit precedent,”
United States v. Oduu, 564 F. App’x 127, 129 (5th Cir. 2014), we DENY the
government’s motion for summary disposition. However, because Banaga-
Alcaraz’s initial brief, the government’s motion, and Banaga-Alcaraz’s
response adequately address the parties’ positions, see id. at 129–30, we
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DISPENSE with further briefing and DENY Banaga-Alcaraz’s petition for
review.
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