Javier Martinez-Hernandez v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER MARTINEZ-HERNANDEZ, No. 11-70492
Petitioner,
Agency No.
v. A079-789-315
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
JAVIER MARTINEZ-HERNANDEZ, No. 11-72532
Petitioner,
Agency No.
v. A079-789-315
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2015*
Pasadena, California
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MARTINEZ-HERNANDEZ V. HOLDER
Filed February 24, 2015
Before: Michael J. Melloy,** Jay S. Bybee,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
SUMMARY***
Immigration
The panel denied Javier Martinez-Hernandez’s petition
for review from the Board of Immigration Appeals’ decision
denying his motion to reopen on the basis of ineffective
assistance of counsel.
The panel held that the BIA did not abuse its discretion by
rejecting petitioner’s argument that his counsel was
ineffective for failure to seek cancellation of removal,
because petitioner failed to make the necessary threshold
showing that his claim for cancellation was plausible.
**
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTINEZ-HERNANDEZ V. HOLDER 3
COUNSEL
Karla L. Kraus, Kraus Law Corporation, San Diego,
California, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General; Leslie
McKay, Assistant Director; Kelly J. Walls, Trial Attorney,
United States Department of Justice, Office of Immigration
Litigation, Washington, D.C., for Respondent.
OPINION
PER CURIAM:
Petitioner Javier Martinez-Hernandez seeks review of a
final order of the Board of Immigration Appeals denying a
motion to reopen on the basis of ineffective assistance of
counsel. We deny the petition for review.
Petitioner entered the United States at age one in 1984.
In 1997, when he was still a minor, his permanent-resident
mother applied on his behalf for an I-130 visa. The visa
application did not progress, and in 2002, Petitioner was
placed in removal proceedings. He successfully terminated
those proceedings and continued pursuit of the visa. He
received a visa in 2004 and was officially admitted to the
United States. By that time, he was no longer a minor. He
subsequently failed to apply for adjustment of status within
4 MARTINEZ-HERNANDEZ V. HOLDER
one year as permitted by the Child Status Protection Act of
2002.1
Meanwhile, in October 2001, Petitioner and an
accomplice committed a violent offense against a police
officer. Petitioner was 18 at the time. In December 2001,
Petitioner pleaded guilty to the felony offense of battery with
severe bodily injury, Cal. Penal Code § 243(d), with an
enhancement for use of a deadly weapon or instrument on a
police officer, id. § 1192.7(c)(11).
Petitioner’s 2004 visa authorized him to remain in the
United States for three years. He overstayed the visa, and in
2007, he entered removal proceedings. He conceded
removability. Through counsel, Petitioner indicated he
intended to seek cancellation of removal and adjustment of
status. At an initial hearing, an immigration judge indicated
Petitioner likely would be ineligible for cancellation of
removal due to his criminal conviction. Petitioner’s counsel
ultimately applied only for adjustment of status. The IJ
denied adjustment of status based upon Petitioner’s failure to
apply for such relief within one year of obtaining his visa.
On appeal to the BIA, Petitioner moved to remand his
case to the IJ, arguing that counsel was ineffective for failing
to seek cancellation of removal and for pursuing only
1
The “Child Status Protection Act of 2002 [Pub. L. No. 107-208, 116
Stat. 927 (2002)] prevents individuals from ‘aging out’ of a visa category
as a result of delays in visa processing and adjudication.” Padash v. INS,
358 F.3d 1161, 1163 (9th Cir. 2004). The protection extends to persons
whose visas were in process at the time of the act’s passage. See id. at
1174. To secure adjustment of status based upon the protection of this act,
relief must be sought within one year of obtaining a visa. See 8 U.S.C.
§ 1153(h)(1)(A)-(B).
MARTINEZ-HERNANDEZ V. HOLDER 5
adjustment of status. Specifically, Petitioner argued
(1) adjustment of status clearly had been foreclosed due to the
one-year bar; (2) counsel should have challenged the IJ’s
suggestion that the California felony conviction disqualified
him from receiving cancellation of removal; and (3) counsel
should have pursued cancellation of removal by asserting
exceptional and extremely unusual hardship to Petitioner’s
permanent-resident mother and United States-citizen
daughter. The BIA denied the motion to remand because
Petitioner failed to satisfy the procedural requirements of In
re Lozada, 19 I&N Dec. 637 (BIA 1988). Petitioner then
moved to reopen the case, again alleging ineffective
assistance of counsel. The BIA held the motion to reopen
satisfied the requirements of Lozada, but the BIA denied the
ineffective-assistance claim on its merits.2
“We review a BIA ruling on a motion to reopen for an
abuse of discretion, and will reverse the denial of a motion to
reopen only if the Board acted arbitrarily, irrationally, or
contrary to law.” Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 857 (9th Cir. 2004) (citation and internal quotation
marks omitted). A claim of ineffective assistance of counsel
requires a showing of inadequate performance and prejudice.
Id. at 858. To establish a showing of prejudice in the context
of a motion to reopen, it is not necessary for a petitioner to
make out a prima facie case of eligibility for the ultimate
relief sought—a petitioner “need not show that [he] ‘would
2
Petitioner filed two petitions with this court seeking review of these
two separate BIA orders. We hold that the BIA’s second ruling, which
addressed the merits of Petitioner’s ineffective-assistance arguments,
mooted its earlier determination that Petitioner had not satisfied the
requirements of Lozada. Accordingly, we deny as moot the petition for
review in the first appeal, Ninth Circuit Case No. 11-70492.
6 MARTINEZ-HERNANDEZ V. HOLDER
win or lose on any claims.’” Id. (quoting Lin v. Ashcroft,
377 F.3d 1014, 1027 (9th Cir. 2004)). Rather, a petitioner
must show “counsel’s performance was so inadequate that it
‘may have affected the outcome of the proceedings.’” Id.(quoting Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir.
2003)). Such a showing cannot be made unless a petitioner
demonstrates, at a minimum, that the asserted ground for
relief is at least plausible. See Morales Apolinar v. Mukasey,
514 F.3d 893, 898 (9th Cir. 2008).3
Here, even assuming sufficiently inadequate performance
by counsel below on any or all of the asserted grounds,
Petitioner failed to make the necessary threshold showing that
his claim for cancellation of removal was “plausible.” Id.Without such a threshold showing, a court cannot conclude
that counsel’s inadequacies “‘may have affected the outcome
of the proceedings.’” Maravilla Maravilla, 381 F.3d at 858(emphasis added) (quoting Iturribarria, 321 F.3d at 900).
The BIA in this instance correctly noted that Petitioner
presented no argument or evidence tending to show
“exceptional and extremely unusual hardship” to a qualifying
relative, a requirement for relief pursuant to 8 U.S.C.
§ 1229b(b)(1)(D). This hardship standard is stringent. It is
not satisfied by the mere fact that the petitioner has a citizen
child and a permanent-resident mother; more is required.
3
Although a rebuttable presumption of prejudice arises when counsel’s
failure to timely appeal or file an appellate brief “‘deprives the alien of the
appellate proceeding entirely,’” Rojas-Garcia v. Ashcroft, 339 F.3d 814,
826 (9th Cir. 2003) (quoting Dearinger ex rel. Volkova v. Reno, 232 F.3d
1042, 1045 (9th Cir. 2000)), such a presumption is inapplicable here
because Petitioner was not deprived of an appellate proceeding. Rather,
Petitioner’s new attorney timely filed a notice of appeal, and the BIA
decided the appeal.
MARTINEZ-HERNANDEZ V. HOLDER 7
And, the appellate briefing to our court is devoid of argument,
references to evidence, or even a narrative tending to suggest
what the nature of the asserted “extremely unusual hardship”
to Petitioner’s relatives might be. Cf. Partap v. Holder,
603 F.3d 1173, 1175 (9th Cir. 2010) (per curiam) (finding no
abuse of discretion in the denial of a motion for remand
where a petitioner “did not tender any evidence showing
‘exceptional and extremely unusual hardship’”). The BIA,
therefore, did not abuse its discretion by rejecting the
ineffective assistance of counsel argument and denying the
motion to reopen.
The petition for review is DENIED.