Gerardo Cordova v. Loretta E. Lynch

United States Court of Appeals
For the Eighth Circuit
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No. 16-2674
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Gerardo Reyes Cordova
lllllllllllllllllllllPetitioner
v.
Jeff B. Sessions, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 14, 2017
Filed: February 16, 2017
[Unpublished]
Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Gerardo Reyes Cordova petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal of an immigration judge’s order
denying his motion to reopen his removal proceedings. Cordova moved to reopen the
1
Jeff B. Sessions is automatically substituted pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
proceedings on the ground that his counsel was ineffective in advising him to
withdraw his application for cancellation of removal and accept voluntary departure.
After careful review, we conclude the BIA did not abuse its discretion in
rejecting Cordova’s claim of ineffective assistance and dismissing his appeal. See
Valencia v. Holder, 657 F.3d 745, 748 (8th Cir. 2011) (motions to reopen reviewed
for abuse of discretion). Had Cordova pursued his application for cancellation of
removal, he would have been required to show that he did not have any prior
convictions that made him ineligible for discretionary cancellation of removal. See
8 U.S.C. § 1229b(b)(1)(C) (allowing discretionary cancellation of removal for alien
who, inter alia, has no convictions for certain specified offenses); Andrade-Zamora
v. Lynch, 814 F.3d 945, 948, 950 (8th Cir. 2016) (alien bears burden of showing
eligibility for discretionary cancellation of removal). At no time has Cordova
alleged--much less offered evidence--that he does not have such a disqualifying
conviction. Accordingly, he did not show prejudice resulting from his counsel’s
allegedly deficient performance. See Singh v. Lynch, 803 F.3d 988, 994 (8th Cir.
2015) (to be eligible for BIA’s discretionary relief based on ineffective assistance of
counsel, alien must show his counsel’s performance was so ineffective it rendered
proceeding fundamentally unfair, and he was prejudiced by counsel’s performance);
see also Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005) (per
curiam) (prejudice exists when there is reasonable probability that, but for counsel’s
alleged error, outcome of proceedings would have been different).
Accordingly, we deny the petition for review.
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