Poghosyan v. Garland

Case: 21-60587 Document: 00516639491 Page: 1 Date Filed: 02/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 8, 2023
No. 21-60587
Lyle W. Cayce
Clerk
Ruben Poghosyan,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A203 600 862
Before Dennis, Elrod, and Ho, Circuit Judges.
Per Curiam:*
Ruben Poghosyan, a native and citizen of Armenia, petitions for
review from a Board of Immigration Appeals decision. He filed a motion to
reopen the proceedings before the immigration court, alleging ineffective
assistance of counsel. The immigration judge denied the motion. Poghosyan
appealed that denial to the BIA and filed a second motion to reopen based on
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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intervening precedent. The BIA denied the motion to reopen and dismissed
the appeal. Because Poghosyan fails to show any reversible error, we DENY
the petition for review.
I
Poghosyan sought admission into the United States in 2019 without
an entry document. Shortly after, the Department of Homeland Security
detained Poghosyan and issued a Notice to Appear. In response, Poghosyan
filed applications for asylum, withholding of removal, and protection under
the Convention Against Torture.
As support for his applications, Poghosyan recounted a number of
attacks and threats he says he experienced in Armenia because of his political
views and activities. For example, Poghosyan alleged that he was beaten and
threatened by members of a political party for coordinating a campaign for an
opposing political party. And he testified that “the police did nothing” when
he reported the incident. He also recounted that members of the Armenian
police threatened him “to force [him] to stop [his] activities in support of
[the opposition party].” He further alleged that the police arrested and
“severely beat[]” him shortly before he sought admission into the United
States.
Following his arrest and beating, Poghosyan filed a complaint against
the officers with the Human Rights Defenders office, an Armenian
governmental body responsible for the protection of human rights.
According to Poghosyan, in response to his complaint, the police broke into
his home and detained, interrogated, and threatened him over his support for
the opposition party and his human rights complaint. Poghosyan
subsequently fled to seek asylum because, in his words, he felt that his “life
was endangered” if he remained in Armenia. Poghosyan arrived in the
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United States without an entry document, and the DHS detained him and
issued a Notice to Appear.
Prior to the merits hearing before the IJ, Poghosyan shared several
documents with his counsel, including a medical document from a
neuropathologist stating that Poghosyan has a diagnosis of “vegetative
vascular dystonia (a psychological disorder marked by extreme fatigue,
psychological vulnerability, anxiety and fear) with frequent hypertonic
paroxysm (sudden attacks or violent expressions of emotion) and panic
attacks.” The neuropathologist prescribed medications and determined that
“[c]onstant supervision of a neurologist, therapist, and psychologist is
needed.” The IJ was not aware of these documents prior to the merits
hearing because Poghosyan’s counsel “did not raise any concerns [about the]
diagnosis.”
Following the merits hearing, the IJ found Poghosyan not credible and
stated that he “would deny on the basis of credibility, as well as his failure to
prove . . . [that it is] more likely than not [that he] would be persecuted or
tortured if he was removed to Armenia.” The IJ then spoke to Poghosyan
directly to explain the court’s decision. During the exchange, the IJ
questioned Poghosyan on whether his counsel had spoken to him regarding
an appeal. The IJ explained the appeal process and noted that if Poghosyan
waived his appeal, “[he] cannot change his mind at a later time.” The IJ
offered Poghosyan time to confer on the issue with his attorney, reminded
him that a waiver would be irrevocable, and asked if he wished to waive his
appeal. Poghosyan responded, “I waive.” The IJ concluded that Poghosyan
“knowingly and intelligently waived his right to appeal” and confirmed that
counsel agreed.
Poghosyan subsequently obtained new counsel and filed a motion to
reopen, alleging ineffective assistance of counsel. He alleged that his
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previous counsel failed to seek a competency hearing and failed to preserve
his right of appeal. Poghosyan also alleged a violation of his due process
rights because some of the testimony was inaudible on the audio recording of
the removal hearing. Without a clear audio recording, he contended, his
competency at the hearing cannot be assessed properly.
The IJ denied the motion to reopen, and Poghosyan appealed to the
BIA. Poghosyan then filed a second motion to reopen, this time with the BIA,
seeking remand to the IJ to consider asylum in light of a new precedent
vacating an agency rule that the IJ cited. The BIA denied reopening and
dismissed the appeal. Poghosyan timely filed a petition for review in this
court.
On petition for review, Poghosyan raises three issues. First, he argues
that the BIA erred in dismissing his appeal of the IJ’s denial of his motion to
reopen based on ineffective assistance of counsel. Second, he argues that the
BIA erred in denying his motion to reopen based on intervening precedent.
Finally, he argues that the BIA erred in finding no violation of Poghosyan’s
due process rights.
II
This court reviews the denial of a motion to reopen or a motion for
reconsideration under a “highly deferential abuse-of-discretion standard.”
Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017) (quoting Singh v. Gonzales,
436 F.3d 484, 487 (5th Cir. 2006)). Conclusions of law are reviewed de novo,
Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014), whereas
“the agency’s factual findings” are reviewed “for substantial evidence,
meaning that [this court] may not overturn the [agency’s] factual findings
unless the evidence compels a contrary conclusion,” Maradia v. Garland, 18
F.4th 458, 461 (5th Cir. 2021) (internal quotation marks and citation
omitted).
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III
To warrant reopening the case due to ineffective assistance of counsel,
Poghosyan must demonstrate that counsel’s performance was
“constitutionally deficient” and that he was “prejudiced” by the counsel’s
actions. Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018). A showing of
prejudice requires “that there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. (internal quotation marks and citation omitted).
A
Poghosyan argues that his former counsel provided ineffective
assistance because he “failed to inform the Court of the significant
competency issues present in this case, . . . and did not ask the IJ to accept
testimony under safeguards to ensure [his] right to a fair trial.” Poghosyan
points out that he “provided [his attorney] with his medical documents
months before the merits hearing.” And yet, his attorney failed to alert the
IJ of his mental condition. He argues that “[h]ad the IJ [been] on notice
[about] the mental health concern,” the IJ could have taken that into account
when assessing Poghosyan’s reliability.
But even though Poghosyan submitted documents showing a mental
health diagnosis, that diagnosis alone is insufficient to cast doubt on his
competency. See Matter of M-A-M-, 25 I. & N. Dec. 474, 477 (BIA 2011). On
the contrary, the IJ found that Poghosyan was “coherent, appeared to
understand the nature of the proceedings, and was able to answer questions”
from counsel and the IJ. Similarly, the BIA determined that Poghosyan failed
to show that he lacked competence at the merits hearing or that he was
prejudiced by the absence of a competency hearing. The record of the
hearing demonstrates that Poghosyan was able to recapitulate the alleged
incidents that led to his seeking of asylum, and his testimony was largely
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consistent with the record. Thus, under the deferential substantial-evidence
standard, we are compelled to affirm the BIA’s conclusion that Poghosyan
failed to show that he was prejudiced due to his former counsel’s decision
not to seek a competency hearing.
B
Poghosyan also argues that his counsel rendered ineffective assistance
by advising him to waive his right to appeal. He contends that because of his
former counsel’s failure to provide meaningful explanation, he did not
understand “what right he was giving up and the consequences of the same,”
especially given his psychological limitations. He argues that “but for [his
former counsel’s] failure,” he “would have had the chance to . . . request the
higher courts to review the IJ’s determination.”
But Poghosyan never denied that he informed his counsel that he did
not wish to remain in custody for several months during an appeal. As the
BIA noted, a decision in favor of a particular strategy rarely provides the basis
for a claim of ineffective assistance of counsel. See Matter of B-B-, 22 I .& N.
Dec. 309, 310 (1998); De Zavala v. Ashcroft, 385 F.3d 879, 884 (5th Cir.
2004).
Furthermore, Poghosyan’s counsel was not the only one who ensured
that he understood the consequence of the waiver. Following the hearing,
the IJ noted the affirmative steps required to lodge an appeal and explained
to Poghosyan multiple times that a waiver of his right to appeal would be
irrevocable. The IJ explained the appeal process and noted that if Poghosyan
waived his appeal, “[he] cannot change his mind at a later time.” The IJ
offered Poghosyan time to confer on the issue with his attorney, reminded
him again that a waiver would be irrevocable, and asked if Poghosyan wished
to waive his appeal. Poghosyan responded, “I waive.” Under the deferential
substantial-evidence standard, the record evidence does not warrant reversal
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of the BIA’s conclusion that Poghosyan knowingly waived his right to appeal
and is thus not prejudiced by any alleged ineffective assistance.
IV
Poghosyan also filed a motion to reopen based on intervening
precedent. Poghosyan argues that his case should be reopened in light of an
intervening decision by the United States District Court for the District of
Columbia, which vacated an interim final rule that the IJ cited. Capital Area
Immigrants’ Rights Coalition v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020);
Citing that rule, the IJ denied Poghosyan’s application for asylum because he
had not applied for protection in any country en route to the United States.
Poghosyan argues that because the rule has now been vacated, the BIA should
have granted his motion to reopen.
Because the motion relied solely on a change in law, we construe the
motion as a motion for reconsideration. Cardona-Franco v. Garland, 35 F.4th
359, 365 n.4 (5th Cir. 2022) (quoting Gonzalez Hernandez v. Garland, 9 F.4th
278, 283 (5th Cir. 2021)) (observing that “motions to reopen are reserved for
new evidence,” while “[m]otions to reconsider are limited to ‘errors of law
or fact in the previous order.’”). According to the applicable statute,
motions for reconsideration “must be filed within 30 days of the date of entry
of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(6)(B). And
as the BIA noted, the motion is untimely because it “was filed more than 90
days after the Immigration Judge denied the respondent’s applications for
relief.” In response, Poghosyan seeks equitable tolling.
The BIA determined that even assuming arguendo that equitable
tolling is available, Poghosyan’s challenge is unavailing because the IJ’s
adverse credibility finding can serve as an independent basis for denying
Poghosyan’s asylum claim. See Avelar-Oliva v. Barr, 954 F.3d 757, 762 (5th
Cir. 2020). As the BIA observed, the IJ denied Poghosyan’s applications for
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relief based on the IJ’s adverse credibility finding, “and [Poghosyan] did not
appeal this determination, which remains final.” Because he failed to appeal
the adverse credibility finding, which was the IJ’s basis for denying relief, the
BIA held that Poghosyan “has not adequately explained how he is statutorily
eligible for asylum.” Reviewing the BIA’s denial under a “highly deferential
abuse-of-discretion standard,” we hold that the BIA did not abuse its
discretion in denying Poghosyan’s motion to reconsider. Lowe, 872 F.3d at
715 (quoting Singh, 436 F.3d at 487).
V
Poghosyan also contends that his due process rights were violated
because the transcript and recording of the hearing fail to reflect the complete
testimony. He thus argues that he was deprived of a meaningful review
because of the transcription failure. But “a mere failure of transcription, by
itself, does not rise to a due process violation.” Kheireddine v. Gonzales, 427
F.3d 80, 85 (1st Cir. 2005). Rather, “[d]ue process challenges to deportation
proceedings require an initial showing of substantial prejudice.” Maniar v.
Garland, 998 F.3d 235, 241 (5th Cir. 2021) (citation omitted).
As the BIA observed, Poghosyan “has not proffered what the missing
testimony was or what it would have proved, and has not demonstrated that
the outcome of the proceedings would have been different had there been no
alleged due process violation.” Nor does Poghosyan make that showing here.
Thus, the BIA did not err in determining that Poghosyan failed to
“demonstrate that the outcome of the proceedings would have been different
had there been no alleged due process violation.” And given that
determination, the BIA did not err in rejecting Poghosyan’s due process
argument. See Maniar, 998 F.3d at 241–42 (rejecting a due process challenge
based on missing transcripts because the alien “fails to demonstrate any
prejudice, let alone substantial prejudice”).
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* * *
Accordingly, the petition for review is DENIED.
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