Rosendo Ponce Flores v. U.S. Attorney General ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10600
____________________
ROSENDO PONCE FLORES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A077-460-794
____________________
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2 Opinion of the Court 21-10600
Before WILLIAM PRYOR, Chief Judge, and HULL and MARCUS,
Circuit Judges.
HULL, Circuit Judge:
Rosendo Ponce Flores petitions for review of the Board of
Immigration Appeals’s (“BIA”) order (1) affirming the Immigration
Judge’s (“IJ”) denial of his application for cancellation of removal
and dismissing his appeal, and (2) denying his motion to reopen and
remand his removal proceedings. Ponce Flores, a citizen of
Mexico, conceded removability. This petition is about only his
application for cancellation of his removal. The main grounds for
both his appeal to the BIA and his motion to reopen were Ponce
Flores’s claim that his counsel rendered ineffective assistance and
denied him constitutional due process as to his cancellation-of-
removal application.
After review and with the benefit of oral argument, we
conclude as to the denial of Ponce Flores’s application that:
(1) cancellation of removal is a purely discretionary form of relief
from removal; (2) Ponce Flores does not have a constitutionally
protected liberty interest in that purely discretionary relief; and
(3) therefore, Ponce Flores’s constitutional due process claim is
meritless, and we lack jurisdiction to entertain it under the
Immigration and Nationality Act (“INA”) § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D). To the extent Ponce Flores is challenging the BIA’s
affirmance of the IJ’s determination that Ponce Flores has not
satisfied the hardship requirement for eligibility for cancellation of
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removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1)(D), we also
lack jurisdiction to review that factual finding.
As to Ponce Flores’s ineffective assistance claims in his
motion to reopen and remand, we conclude that: (1) Ponce Flores
cannot establish a constitutional due process violation based on the
BIA’s denial of his motion to reopen because he does not have a
protected liberty interest in either discretionary cancellation of
removal or in the granting of a motion to reopen; (2) the BIA
properly followed its legal precedent in Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988); and (3) to the extent Ponce Flores’s
challenge to the denial of his motion to reopen rests on an
argument that the BIA erred in ruling that he had not demonstrated
that but for his counsel’s deficiencies he would have proved the
requisite hardship, we lack jurisdiction to entertain this claim.
I. BACKGROUND
A. Ponce Flores’s Unlawful Entry
Ponce Flores, a native and citizen of Mexico, first entered
the United States in either 1995 or 1996. In 1999, Ponce Flores was
arrested on charges of alien smuggling after he and two other aliens
crossed the border in Laredo, Texas. Ultimately, Ponce Flores pled
guilty to unlawfully entering the United States, in violation of 8
U.S.C. § 1325. Ponce Flores was removed to Mexico, but placed
on five years’ probation without supervision and with the special
condition that he did not return or attempt to return to the United
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States. While in Mexico, Ponce Flores met and married Lizet
Cornejo.
In 2004, Ponce Flores unlawfully re-entered the United
States in Arizona without inspection. He and his wife settled in
Naples, Florida, where he works.
Ponce Flores and his wife have two daughters who were
born in Naples and are U.S. citizens. Born in 2004, their oldest
daughter, Nancy, was diagnosed with autism spectrum disorder
and expressive language disorder. Born in 2012, their younger
daughter, Stephanie, does not have special needs.
B. Initiation of Removal Proceedings in 2016
In October 2016, Ponce Flores was arrested for domestic
battery of his wife, although charges were never filed. He also had
two traffic infractions for driving without a license and driving on
a suspended license, but adjudication for both offenses was
withheld.
In November 2016, the Department of Homeland Security
served Ponce Flores with a notice to appear that charged him with
removability on two grounds: (1) under INA § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States
without having been admitted or paroled; and (2) under INA
§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien not in
possession of a valid entry document at the time of admission. At
an initial hearing in November 2016, Ponce Flores conceded
removability as charged.
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Sometime in 2017, Lizet Cornejo and her daughters moved
to Dallas, Texas. Ponce Flores remained in Naples, Florida. In
Texas, his daughter Nancy began attending a school with a special
program for autism.
C. Application for Cancellation of Removal in 2018
Later, Ponce Flores retained attorney Matus Varga to
represent him. In January 2018, attorney Varga filed Ponce Flores’s
application for cancellation of removal pursuant to INA
§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1). That application claimed that
Ponce Flores’s removal would result in exceptional and extremely
unusual hardship to his U.S.-citizen daughter Nancy because of her
autism.
Attorney Varga filed multiple documents, such as:
(1) documents about Nancy’s medical and educational needs;
(2) medical records and reports from her doctors; (3) records from
her elementary school in Florida and her middle school in Texas
indicating she received special education services; (4) Ponce
Flores’s tax returns for 2008 and 2011 to 2016; (5) notarized
character letters from friends; and (6) a notarized letter from Lizet
Cornejo, stating that Nancy did not understand her father’s
absence and suffered every day waiting for his return.
At his 2018 merits hearing, Ponce Flores testified that he
remained in Florida for his job and flew to Texas once a month to
see his family. Ponce Flores admitted, however, that he was
arrested for (1) alien smuggling and convicted of illegal reentry and
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(2) domestic abuse but those charges were dismissed. He also
admitted that his family had received government assistance for
Nancy’s therapy and health insurance. Contrary to his testimony,
Ponce Flores’s application had indicated that he was never arrested
or convicted of an offense and that no member of his family,
including his children, received public assistance.
D. IJ’s Denial of Cancellation of Removal
In July 2018, the IJ’s decision denied Ponce Flores’s
application for cancellation of removal. The IJ found that Ponce
Flores’s testimony lacked credibility due to (1) inconsistencies
between his hearing testimony and the information in his
application and (2) his failure to provide corroborating evidence for
key aspects of his testimony.
The IJ denied Ponce Flores’s application because he failed to
establish three of the four statutory requirements for eligibility for
discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1).
Under § 1229b(b)(1), the Attorney General “may cancel removal”
of an alien “who is inadmissible or deportable” if he satisfies these
four requirements for eligibility: (1) he has been continuously
present in the United States for at least ten years; (2) he has been a
“person of good moral character” during that period; (3) he has not
been convicted of any specified criminal offenses; and (4) his
“removal would result in exceptional and extremely unusual
hardship” to a qualifying relative who is a U.S. citizen or lawful
permanent resident. 8 U.S.C. § 1229b(b)(1)(A)-(D). The IJ found
Ponce Flores failed to establish these three requirements for
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eligibility: his continuous physical presence, his good moral
character, or that his U.S.-citizen children will face exceptional and
extremely unusual hardship as a result of his removal. Because the
BIA focused on only the missing hardship requirement, we do too.
As to the hardship requirement for eligibility, the IJ
acknowledged that Nancy’s autism was serious and lifelong. The
IJ concluded, however, that Ponce Flores failed to establish
(1) Nancy was currently enrolled in a special school or program in
Texas, (2) the kind of relationship Ponce Flores had with Nancy
given that she lived in Texas, (3) what financial assistance he
provided her, (4) whether Nancy received subsidized medical
assistance, and (5) whether Lizet Cornejo could work or had other
means of support. The IJ stressed that Ponce Flores had not
submitted corroborating documentation, such as affidavits from
his wife or others, transportation receipts, wire transfers, or bank
statements.
E. BIA Appeal and Motion to Reopen Based on Ineffective
Assistance
After retaining new counsel, Ponce Flores appealed the IJ’s
denial to the BIA. Ponce Flores’s appeal challenged the IJ’s findings
that Ponce Flores (1) lacked credibility; (2) had not shown ten years
of continuous physical presence; and (3) had not established the
requisite hardship to his daughter Nancy. Ponce Flores contended
that but for counsel’s ineffective assistance, the IJ would not have
made these findings.
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Ponce Flores also moved to remand and reopen his
cancellation-of-removal application due to attorney Varga’s
ineffective assistance. 1 Ponce Flores contended that the
inconsistencies and missing evidence were a direct result of Varga’s
failures to consult with Ponce Flores before completing and
submitting his application, to communicate with and prepare
Ponce Flores for his hearing, and to obtain and submit evidence to
support Ponce Flores’s application.
Ponce Flores attached to his motion new evidence,
including (1) medical and educational reports and evaluations
confirming Nancy’s learning disabilities and her continued
placement in special education programs in Texas; (2) records
indicating Ponce Flores’s financial support for and involvement
with his family in Texas; (3) documents about his monthly flights
to Dallas; (4) his declaration summarizing his agreement with
Varga and Varga’s deficient actions; (5) documents showing that
Ponce Flores notified Varga of allegations of ineffective assistance
and Varga responded to those allegations; and (6) evidence that
Ponce Flores filed a complaint with the Attorney Grievance
Committee in New York, where Varga was admitted to practice
law. Before the BIA, Ponce Flores argued: (1) his evidence
complied with the BIA’s procedural requirements for ineffective
1 Ponce Flores styled his motion as a “Motion to Remand Proceedings Due
To Ineffective Assistance of Counsel.” He requested that the BIA “remand”
his case.
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assistance claims set forth in Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988), and (2) he had shown the requisite prejudice to reopen
his application for cancellation of removal.
F. BIA Decision Affirming IJ and Denying Motion to Reopen
In January 2021, the BIA dismissed Ponce Flores’s appeal of
the IJ’s decision and denied his motion to reopen and remand his
application for cancellation of removal for further consideration.2
As to Ponce Flores’s ineffective assistance claim, the BIA
concluded that (1) he had “identified deficiencies in his
representation by former attorneys,” but (2) he had not shown
prejudice “as a result of his former attorneys’ alleged
ineffectiveness so as to have affected the outcome of these
proceedings.” As to the IJ’s hardship finding, the BIA “presum[ed]
without deciding” that Ponce Flores was credible, considered his
2 Although Ponce Flores styled his motion as a motion to remand, his motion
relied on new evidence of both attorney Varga’s ineffective assistance and
Ponce Flores’s eligibility for cancellation of removal and sought additional
proceedings to consider the new eligibility evidence. The BIA treated Ponce
Flores’s motion as a “motion to reopen and remand.” See Chacku v. U.S. Att’y
Gen., 555 F.3d 1281, 1286 (11th Cir. 2008) (“[I]f a motion to remand seeks to
introduce evidence that has not previously been presented, it is generally
treated as a motion to reopen under 8 C.F.R. § 1003.2(c).” (quotation marks
omitted)); Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992) (“[W]here a
motion to remand is really in the nature of a motion to reopen . . . , it must
comply with the substantive requirements for such motions.”). Further,
where “a motion to remand seeks additional proceedings to introduce
additional evidence, we apply the same standard of review as a motion to
reopen.” Sow v. U.S. Att’y Gen., 949 F.3d 1312, 1317 (11th Cir. 2020).
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new evidence, and reviewed de novo the IJ’s hardship finding.
After doing so, the BIA determined that Ponce Flores did not
establish that his removal would result in exceptional and unusual
hardship to his qualifying U.S.-citizen daughters. Ponce Flores thus
had not shown his eligibility for cancellation of removal.
The BIA noted Ponce Flores’s hearing testimony that he had
lived apart from his family for over a year, that he supported them
financially and visited monthly, and that his daughters would
remain in the United States with their mother even if Ponce Flores
was removed to Mexico. The BIA concluded Ponce Flores had
“established that his eldest daughter suffers from severe autism,”
but stressed that Ponce Flores testified she was covered by state-
funded health insurance in Texas. The BIA determined that “the
record does not suggest she will lose that coverage or access to
medication, treatment, or educational accommodations” upon
Ponce Flores’s removal.
The BIA also acknowledged that if Ponce Flores were
removed, his daughters would likely suffer emotional hardship and
would not have the “same standard of living in the United States.”
Even considering all the hardship evidence and factors
cumulatively, the BIA determined that Ponce Flores had “not
demonstrated the requisite exceptional and extremely unusual
hardship” to his daughters that was needed to establish eligibility
for cancellation of removal. The BIA denied his motion to reopen
and remand. The BIA declined to “reach whether [Ponce Flores]
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satisfied the other statutory requirements” for eligibility for
cancellation of removal.
Ponce Flores timely filed a petition for review. In his
petition, Ponce Flores argues that his former counsel’s ineffective
assistance caused the IJ’s denial of his application for cancellation
of removal and denied him constitutional due process. He also
contends the BIA abused its discretion when it denied his motion
to reopen and remand based on his former counsel’s ineffective
assistance.
IV. BIA DECISION AFFIRMING IJ’S DENIAL OF
CANCELLATION OF REMOVAL
A. Standard of Review
We review only the BIA’s decision as the final agency
decision except to the extent the BIA adopts the IJ’s decision. Ayala
v. U.S. Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We review
questions of law de novo. Id. at 948. We review our own subject
matter jurisdiction de novo. Blanc v. U.S. Att’y Gen., 996 F.3d
1274, 1277 (11th Cir. 2021).
B. Jurisdiction
Congress has restricted our jurisdiction over certain
immigration matters. Under 8 U.S.C. § 1252(a)(2)(B), this Court
lacks jurisdiction “to review . . . any judgment regarding the
granting of relief under section . . . 1229b” for cancellation of
removal. INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). This
provision deprives us of jurisdiction “to review facts found as part
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of discretionary-relief proceedings.” Patel v. Garland, 596 U.S. ___,
142 S. Ct. 1614, 1627 (2022), aff’g sub nom. Patel v. U.S. Att’y Gen.,
971 F.3d 1258 (11th Cir. 2020) (en banc). This jurisdictional bar
includes the “exceptional and extremely unusual hardship” factual
finding under § 1229b(b)(1)(D). Flores-Alonso v. U.S. Att’y Gen.,
36 F.4th 1095, 1099-1100 (11th Cir. 2022) (explaining that we can
only review “any legal error with respect to the application of the
law to those facts established in the BIA’s decision”).
Notwithstanding § 1252(a)(2)(B)’s jurisdictional bar, we
retain jurisdiction to consider constitutional claims and questions
of law. 8 U.S.C. § 1252(a)(2)(D); Patel, 971 F.3d at 1262. However,
“a party may not dress up a claim with legal or constitutional
clothing to invoke our jurisdiction.” Patel, 971 F.3d at 1272. “Such
a claim must be colorable.” Id. We have said that for a claim to be
“colorable,” it must be “non-frivolous,” see Alvarez Acosta v. U.S.
Att’y Gen., 524 F.3d 1191, 1197 (11th Cir. 2008), and “have some
possible validity,” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 n.2
(11th Cir. 2007) (quotation marks omitted). “[W]here a
constitutional claim has no merit[,] we do not have jurisdiction.”
Arias, 482 F.3d at 1284 (cleaned up).
C. Constitutional Due Process Claim Based on Ineffective
Assistance
Here, Ponce Flores argues that but for his attorney Varga’s
deficient performance, he would have successfully carried his
burden to prove his eligibility for cancellation of removal and
therefore he was deprived of his Fifth Amendment right to due
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process of law. We lack jurisdiction to review Ponce Flores’s
constitutional due process claim because it is wholly without merit
and therefore not colorable.
As we recognized in Mejia Rodriguez, when an alien retains
counsel, an alien has a right to effective assistance of that counsel
in the underlying removal proceedings. Mejia Rodriguez v. Reno,
178 F.3d 1139, 1146 (11th Cir. 1999); see also Gbaya v. U.S. Att’y
Gen., 342 F.3d 1219, 1221 (11th Cir. 2003). This is because a
removal “proceeding implicates an alien’s liberty interest, which is
protected by the Due Process Clause.” Mejia Rodriguez, 178 F.3d
at 1146. This is Mejia Rodriguez’s first principle.
In contrast, “the failure to receive relief that is purely
discretionary in nature does not amount to a deprivation of a
liberty interest” and thus cannot deprive an alien of due process
under the Fifth Amendment. Id. at 1146-48. This is Mejia
Rodriguez’s second principle.
Specifically, in Mejia Rodriguez, this Court concluded that
an alien is not deprived of due process where his counsel’s deficient
performance prevented the alien from being eligible for
discretionary relief from deportation. Id. at 1148. The alien in
Mejia Rodriguez, much like Ponce Flores here, did not contest his
grounds for deportation. Id. at 1146. Instead, Mejia Rodriguez
sought a suspension of his deportation, an earlier form of
discretionary relief that was the precursor to the cancellation of
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removal that Ponce Flores now seeks. 3 Id. at 1145-46. Mejia
Rodriguez argued that but for his attorney’s ineffective assistance
during his deportation proceedings, “he would have been eligible
for suspension of deportation.” Id. at 1146.
This Court concluded that Mejia Rodriguez was not
deprived of due process under the Fifth Amendment. Id. at 1148.
The Court explained that because suspension of deportation was
“an act of grace” committed to the “unfettered discretion” of the
Attorney General, “even if an alien meets the statutory
requirements for eligibility . . . , the alien [was] not in any way
entitled to this exceptional remedy.” Id. at 1147 (quotation marks
omitted). In fact, the “alien’s actual chances of receiving such
discretionary relief are too speculative, and too far beyond the
capability of judicial review, to conclude that the alien has actually
suffered prejudice from being ineligible for suspension of
deportation.” Id. at 1148 (stating “this Court cannot predict the
subjective and fact-intensive judgments that the Attorney General
3 Suspension of deportation had very similar eligibility requirements,
including continuous physical presence in the United States for a period of
years, good moral character, and an “exceptional and extremely unusual
hardship” to a qualifying relative who was a U.S. citizen. Mejia Rodriguez,
178 F.3d at 1141 n.2 (quotation marks omitted). In 1996, the Illegal
Immigration Reform and Immigrant Responsibility Act repealed the provision
authorizing suspension of deportation and replaced it with a provision
authorizing cancellation of removal. Id. at 1142 n.3; see also Pub. L. No. 104-
208, div. C, tit. III, subtit. A, §§ 304, 308(b)(7), 110 Stat. 3009-575, 3009-616
(Sept. 30, 1996).
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would make in deciding whether to grant extraordinary relief, such
as the suspension of deportation”).
Consequently, this Court in Mejia Rodriguez held that “an
attorney’s deficient representation does not deprive an alien of due
process if the deficient representation merely prevents the alien
from being eligible for suspension of deportation.” Id. Since Mejia
Rodriguez, this Court has continued to apply this general rule to
other forms of discretionary relief, including cancellation of
removal. See, e.g., Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548-49
(11th Cir. 2011) (holding absence of interpreter at hearing on
applications for waiver of removability and cancellation of removal
did not violate due process given alien had “no cognizable due
process interest because those forms of relief are discretionary”);
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)
(holding alien’s due process claim based on BIA’s application of a
former regulation could not prevail because he had “no
constitutionally protected interest either in the granting of his
motions [to reopen or for reconsideration] or in adjustment of
status,” all discretionary forms of relief); Garcia v. Att’y Gen. of
U.S., 329 F.3d 1217, 1223-24 (11th Cir. 2003) (holding alien’s due
process claim based on counsel’s ineffective assistance in preparing
application for waiver of excludability lacked merit because such
waiver, “while guided by interpretive decisions, remains a purely
discretionary form of relief”); Mohammed v. Ashcroft, 261 F.3d
1244, 1247-51 (11th Cir. 2001) (holding that alien’s due process
claim based on retroactive application of an amended statute that
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effectively foreclosed cancellation of removal failed because he
“ha[d] no constitutionally-protected right to discretionary relief
from removal”).
Here, Ponce Flores sought cancellation of removal, a form
of relief from removal that, like its predecessor suspension of
deportation, is purely discretionary. See INA § 240A(b); 8 U.S.C.
§ 1229b(b) (“The Attorney General may cancel removal . . . .”
(emphasis added)); Pereida v. Wilkinson, 592 U.S. ___, 141 S. Ct.
754, 759 (2021) (explaining that while an alien facing removal may
ask the Attorney General for cancellation, establishing the
statutory requirements “still yields no guarantees; it only renders
an alien eligible to have his removal order cancelled” and that the
Attorney General has discretion “to grant or withhold that relief”).
As such, under our precedent, Ponce Flores does not have a
constitutionally protected liberty interest in obtaining cancellation
of removal. See Mejia Rodriguez, 178 F.3d at 1148. Thus, Ponce
Flores cannot show that his former counsel’s deficient performance
deprived him of liberty without due process.
Ponce Flores, nonetheless, argues that this Court has
“consistently reviewed due process claims based on ineffective
assistance of counsel in connection with discretionary
applications,” suggesting Mejia Rodriguez has been undermined.
In this regard, Ponce Flores cites these four decisions: (1) Dakane
v. United States Attorney General, 399 F.3d 1269 (11th Cir. 2005),
(2) Sow v. United States Attorney General, 949 F.3d 1312 (11th Cir.
2020), (3) Frech v. United States Attorney General, 491 F.3d 1277USCA11 Case: 21-10600 Document: 35-1 Date Filed: 04/05/2023 Page: 17 of 34
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(11th Cir. 2007), and (4) Ali v. United States Attorney General, 643
F.3d 1324 (11th Cir. 2011). We review each decision below.
For starters, none of these decisions held that an alien has a
constitutionally protected liberty interest in purely discretionary
relief from a removal order, such as cancellation of removal. None
of these found a constitutional due process violation. Rather, to
the extent the decisions review ineffective assistance claims, they
did so in the context of a motion to reopen and based on an alien’s
statutory right to have counsel present at the alien’s expense.
Let’s begin with Dakane. Our Court in Dakane stated: “The
sole issue before us in this appeal is whether Dakane was required
to demonstrate in his motion to reopen that his counsel’s
ineffective assistance prejudiced his removal proceedings.” 399
F.3d at 1272. Our holding in Dakane was that: (1) “a petitioner
claiming ineffective assistance of counsel in a motion for
reconsideration must also show prejudice”; (2) “[p]rejudice exists
when the performance of counsel is so inadequate that there is a
reasonable probability that but for the attorney’s error, the
outcome of the proceedings would have been different”; and
(3) the BIA had not erred in determining Dakane failed to show
prejudice. Id. at 1274-75.
We recognize that Dakane in dicta also stated “[i]t is well
established in this Circuit that an alien in civil deportation
proceedings . . . has the constitutional right under the Fifth
Amendment Due Process Clause right to a fundamentally fair
hearing to effective assistance of counsel where counsel has been
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obtained,” citing Gbaya v. United States Attorney General, 342
F.3d 1219, 1221 (11th Cir. 2003). Id. at 1273.
Dakane, however, added a clarifying footnote six to its
Gbaya cite that points out (1) Dakane is an inadmissible alien; and
(2) “inadmissible aliens such as Dakane have traditionally not been
able to claim constitutional due process protections in exclusion
proceedings”; but (3) “they are ensured a fundamentally fair
hearing through statutory protections provided for by Congress”;
and (4) “Congress has long recognized the importance of counsel
in immigration proceedings as evidenced by the statutory right to
presence of counsel under § 1362 of the INA.” Id. at 1273 n.6
(quotation marks omitted) (emphasis added). The Dakane Court
then cited with approval Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132
(3d Cir. 2001), in which the Third Circuit concluded that an
excludable alien facing exclusion enjoys a statutory right under
§ 1362 to assistance of counsel at his expense and this is necessarily
a right to effective assistance of that counsel. Dakane, 399 F.3d at
1273 n.6; see also Flores-Panameno v. U.S. Att’y Gen., 913 F.3d
1036, 1040 (11th Cir. 2019) (citing Gbaya for the principle that
“8 U.S.C. § 1362 provides that aliens have the right to retain private
counsel in their removal proceedings” and thus “the right to
effective assistance of counsel” so retained).
Our point is that Dakane does not undermine Mejia
Rodriguez’s holding that aliens do not have a constitutionally
protected liberty interest in discretionary relief from removal and
do not have a constitutional due process right to effective assistance
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of counsel in connection with discretionary applications. Instead,
Dakane involved a statutory protection. While Ponce Flores elides
this distinction, it is a critical one. Our Court has not permitted a
constitutional due process claim based on the denial of
discretionary relief like cancellation of removal. So Ponce Flores’s
argument that he can raise a constitutional due process claim based
on ineffective assistance of counsel fails.4
Ponce Flores’s citation to Sow fares no better. Sow
presented himself at the Mexico border, seeking asylum for his fear
of returning to Guinea. Sow, 949 F.3d at 1314. After a merits
hearing where Sow was represented by counsel, the IJ denied his
asylum application. Id. at 1314-16. The IJ stated that Sow “should,
in fact, be given asylum based upon past persecution,” if it were not
for the evidentiary issues that Sow’s attorney had allegedly
4 Notably too, Gbaya cites Mejia Rodriguez, and Gbaya states only that, “It is
well established that ‘[a]liens enjoy the right to the effective assistance of
counsel in deportation proceedings.’” 342 F.3d at 1221 (quoting Mejia
Rodriguez, 178 F.3d at 1146) (alteration in original). While both Dakane and
Gbaya quote this first principle in Mejia Rodriguez, those decisions do not
quote the equally well established second principle in Mejia Rodriguez about
discretionary relief like cancellation of removal at issue here. Indeed, the
quotes in both Dakane and Gbaya reference deportation, not discretionary
relief from deportation.
In any event, Dakane and Gbaya involve applications for asylum,
which is different from other forms of discretionary relief. We need not reach
and thus do not opine on what constitutional due process rights a petitioner
may have in connection with an asylum application.
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20 Opinion of the Court 21-10600
disregarded. Id. at 1319. Sow, represented by new counsel,
appealed to the BIA and filed a motion to remand based on
ineffective counsel, which the BIA denied. Id. at 1316-17. In Sow,
this Court reviewed only whether the BIA had abused its discretion
in denying a motion to reopen based on ineffective assistance,
concluding that it had. See id. at 1313 (quotation marks omitted).
Our Court in Sow did not need to speculate as to whether
the outcome may have been different if counsel had performed
adequately because “[t]he IJ’s uniquely direct statement
confirm[ed] that it would have.” Id. at 1319. Sow did not address,
or even mention, whether the alien had a constitutionally
protected liberty interest in discretionary relief from removal.
Ponce Flores also cites Ali, which involved a discretionary
waiver under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H). 643
F.3d at 1327. The alien claimed that his counsel’s decision to
concede removability was ineffective assistance. Id. at 1329-30.
The ineffective assistance alleged in Ali was not in connection with
his waiver application. Ali does not undermine Mejia Rodriguez’s
holding that an alien has no liberty interest in a purely discretionary
form of relief.
Ponce Flores’s last case, Frech, is equally inapposite. The
alien in Frech sought adjustment of status under § 202 of the
Nicaraguan Adjustment and Central American Relief Act of 1997,
a mandatory form of relief if the eligibility requirements are met.
491 F.3d at 1278-79 & n.1. Frech did not address either
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21-10600 Opinion of the Court 21
discretionary relief from removal or a claim of ineffective assistance
of counsel.
The alien in Frech challenged the IJ’s denial of his motion
for a change of venue from Miami to Houston. Id. at 1279. Frech’s
home, business, retained attorney, and witnesses were in Houston.
Id. at 1279-80. After the IJ denied the venue motion, Frech’s Texas
counsel moved to withdraw and the IJ granted that motion. Id. at
1280. At the merits hearing in Miami, Frech appeared pro se, and
the IJ denied adjustment of status and the relief Frech sought based
on hardship to his family. Id. The BIA affirmed. Id.In his petition for review, Frech argued the denial of his
venue motion denied him constitutional due process because it
deprived him of his right to be represented by the counsel of his
choice and the ability to present evidence. Id. at 1281-82. Our
Court stated that the deprivation of an alien’s right to counsel of
his choice in removal proceedings “would, under certain
circumstances, constitute a due process violation.” Id. at 1282(emphasis added). Yet our Court skipped over what those
circumstances might be and whether they were met. This Court
denied Frech’s petition because he “ha[d] not shown that he was
substantially prejudiced by any due process violation.” Id.(explaining Frech had not shown the dismissal of his attorney in
Texas “was related to the location of the hearing” or that he had
“sought a continuance thereafter for the purpose of obtaining
another attorney” in Florida).
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22 Opinion of the Court 21-10600
Nothing in Frech (or Dakane, Sow, or Ali) undermines Mejia
Rodriguez and our subsequent decisions squarely holding that an
alien does not have a constitutionally protected liberty interest in
purely discretionary forms of relief like cancellation of removal.5
Because Ponce Flores’s constitutional due process claim—
even if based on ineffective assistance—is meritless, it is not
colorable. Accordingly, we lack jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) to review the BIA’s denial of Ponce Flores’s
application for cancellation of removal. See Acosta Alvarez, 524
F.3d at 1197; Arias, 482 F.3d at 1284 n.2. 6
D. Hardship Requirement
Although not raised as a separate argument, Ponce Flores’s
petition does assert that the BIA erred in finding that, even
assuming he was credible, “he did not establish the requisite
hardship to his daughters.” Ponce Flores claims “the BIA failed to
consider all hardship factors in the aggregate,” which he contends
violated Matter of Monreal-Aguinaga, 23 I & N. Dec. 56, 63-64 (BIA
2001).
5 While we take time to review these cases cited by Ponce Flores, we point
out Mejia Rodriguez was decided in 1999, and these decisions came later.
Under our prior panel precedent rule, we are bound by Mejia Rodriguez. See
Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
6 Later on, we discuss Ponce Flores’s motion to reopen filed before the BIA
and his ineffective assistance of counsel claim under the BIA’s precedent in
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
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21-10600 Opinion of the Court 23
To the extent Ponce Flores is challenging the BIA’s decision
affirming the IJ’s hardship determination, we lack jurisdiction to
review this issue. Under our binding precedent, this Court lacks
jurisdiction to review the denial of cancellation of removal
grounded on the fact-based finding that the alien failed to show
exceptional and extremely unusual hardship to a qualifying
relative. See Patel, 971 F.3d at 1279 (“[A]ll eligibility
determinations for the five enumerated categories of discretionary
relief are barred from review.”); Flores-Alonso, 36 F.4th at 1100.
Further, in Flores-Alonso, this Court held that an argument
like the one Ponce Flores makes here—that the BIA failed to
consider all the hardship factors in the aggregate “in the way that
Matter of Monreal-Aguinaga instructs it to do, even though it cited
the proper legal standard”—does not present a legal question this
Court has jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). 36
F.4th at 1100. “As long as the BIA cites and proceeds to apply the
proper legal standard, . . . we cannot make legal error out of an
inherently subjective determination of whether an applicant’s
relatives will experience exceptional and extremely unusual
hardship.” Id.
In Ponce Flores’s appeal, the BIA cited Matter of Monreal-
Aguinaga, among other BIA precedents pertaining to the showing
of hardship, and explicitly stated it had “consider[ed] all of the
hardship factors in this case cumulatively, including the hardships
that may result from the medical, economic, and emotional
factors.” Hence, as to the hardship requirement for eligibility,
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24 Opinion of the Court 21-10600
Ponce Flores has not raised a legal question that we have
jurisdiction to review. 7
V. BIA’S DECISION DENYING MOTION TO REOPEN
CANCELLATION-OF-REMOVAL APPLICATION
Ponce Flores argues that the BIA abused its discretion in
denying his motion to reopen and remand based on attorney
Varga’s ineffective assistance before the IJ. Ponce Flores contends
the BIA (1) failed to follow its own precedent in Lozada, and (2)
erred in determining he had not shown prejudice as a result of that
ineffective assistance. Ponce Flores also seeks to revisit his
constitutional due process claims and the BIA’s hardship
determination in denying his motion to reopen.
“The decision to grant or deny a motion to reopen . . . is
within the discretion of the BIA, 8 C.F.R. § 1003.2(a), and we have
recognized that this discretion is very broad.” Scheerer, 513 F.3d
at 1253 (quotation marks omitted). “The BIA may deny a motion
7 Ponce Flores also argues the IJ erred in finding he did not establish
continuous physical presence because the deficient notice to appear did not
trigger the “stop-time rule” and the IJ’s adverse credibility finding is not
supported by substantial evidence. The BIA, however, explicitly declined to
reach these other grounds that the IJ found warranted denial of Ponce Flores’s
application, and “[w]e do not consider issues that were not reached by the
BIA.” See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). In
addition, because Ponce Flores’s failure to satisfy the requisite hardship
element is alone sufficient to deny his application, we also need not address
these other grounds.
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21-10600 Opinion of the Court 25
to reopen, if the alien fails to establish a prima facie case” of
eligibility for relief. Butalova v. U.S. Att’y Gen., 768 F.3d 1179, 1182
(11th Cir. 2014). The movant “bears a heavy burden” in showing
that reopening is warranted because “motions to reopen are
disfavored, especially in removal proceedings.” Zhang v. U.S. Att’y
Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
A. Standard of Review
We review the BIA’s denial of a motion to reopen removal
proceedings for an abuse of discretion. Jiang v. U.S. Att’y Gen., 568
F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited to
determining whether the BIA exercised its discretion in an arbitrary
or capricious manner.” Id. “The BIA abuses its discretion when it
misapplies the law in reaching its decision.” Ferreira v. U.S. Att’y
Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). We review de novo our
own subject matter jurisdiction. Blanc, 996 F.3d at 1277.
B. Jurisdiction
“Generally, we have jurisdiction to review the denial of a
motion to reopen.” Butalova, 768 F.3d at 1182.
However, when direct review of the underlying order is
barred by one of the INA’s jurisdiction-stripping provisions, we
also lack “jurisdiction to entertain an attack on that order mounted
through” a motion to reopen. Patel v. U.S. Att’y Gen., 334 F.3d
1259, 1262 (11th Cir. 2003) (concluding 8 U.S.C. § 1252(a)(2)(C)’s
criminal-alien bar deprived this Court of jurisdiction to review the
denial of a motion to reopen based on a state court’s nunc pro tunc
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26 Opinion of the Court 21-10600
order modifying the alien’s sentence); see also Butalova, 768 F.3d
at 1183-84 (concluding 8 U.S.C. § 1252(a)(2)(B)(ii) deprived this
Court of jurisdiction to review the BIA’s denial of a motion to
reopen seeking discretionary relief as a battered spouse under 8
U.S.C. § 1154(a)(1)(A)(iii)); Guzman-Munoz v. U.S. Att’y Gen., 733
F.3d 1311, 1313-14 (11th Cir. 2013) (concluding 8 U.S.C.
§ 1252(a)(2)(B)(i) deprived this Court of jurisdiction to review the
BIA’s denial of a motion to reopen seeking discretionary special
cancellation of removal as the battered spouse of a Cuban national
under 8 U.S.C. § 1229b(b)(2)).
Guzman-Munoz is particularly instructive because it
addressed a motion to reopen proceedings in which the alien, like
Ponce Flores, unsuccessfully sought discretionary cancellation of
removal under § 1229b(b) and then filed a motion to reopen with
the BIA. 733 F.3d at 1312. The alien in Guzman-Munoz sought
special cancellation of removal as a battered spouse under
§ 1229b(b)(2), rather than regular cancellation of removal under
§ 1229b(b)(1). Id. As in Ponce Flores’s case, review of the
underlying order denying Guzman-Munoz’s application was
barred by § 1252(a)(2)(B)(i). See id. at 1313. Under these
circumstances, this Court concluded it also lacked jurisdiction to
review the BIA’s denial of Guzman-Munoz’s motion to reopen her
cancellation of removal proceedings and dismissed her petition. Id.
at 1314.
In doing so, we stressed that § 1252(a)(2)(B)(i) strips this
Court of jurisdiction to review “judgments ‘regarding the granting
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21-10600 Opinion of the Court 27
of relief under section . . . 1229b.’” Id. at 1313 (emphasis added)
(quoting 8 U.S.C. § 1252(a)(2)(B)(i)). We reasoned that
Ҥ 1252(a)(2)(B)(i) does not speak in terms of final orders, prima
facie cases, or motions to reopen. Instead, § 1252(a)(2)(B)(i) simply
bars review of discretionary agency judgments granting or denying
relief under § 1229b.” Id. at 1313-14 (emphasis added). To hold
otherwise would permit an “end-run” whereby petitioners “would
be able to obtain appellate-court jurisdiction simply by raising
§ 1229b arguments on motions to reopen.” Id. at 1314.
Finally, although we noted that we “retain[ed] jurisdiction
to review constitutional challenges” under § 1252(a)(2)(D),
Guzman-Munoz had “raise[d] no such challenge.” Id. Applying
these principles, we examine the extent to which we have
jurisdiction to consider Ponce Flores’s challenge to the denial of his
motion to reopen based on ineffective assistance.
C. Constitutional Due Process Claims
To the extent Ponce Flores contends the BIA abused its
discretion in denying his motion to reopen because his counsel’s
ineffective assistance deprived him of constitutional due process
under the Fifth Amendment, we lack jurisdiction to review this
claim mounted through a motion to reopen for the same reasons
we cannot review this claim directly. Because Ponce Flores has no
protected liberty interest in discretionary cancellation of removal,
his Fifth Amendment due process claim is not colorable for
purposes of 8 U.S.C. § 1252(a)(2)(D). See supra Section IV.C. To
hold otherwise would permit an end-run around the jurisdiction-
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28 Opinion of the Court 21-10600
stripping provisions of 8 U.S.C. § 1252(a)(2)(B)(i) and (a)(2)(D),
which together bar us from reviewing any judgment regarding the
granting of cancellation of removal under § 1229b(b), except where
a colorable constitutional claim is presented. See Guzman-Munoz,
733 F.3d at 1314.
To the extent Ponce Flores contends the BIA’s own denial
of his motion to reopen itself deprived him of constitutional due
process, that claim also lacks merit. An alien cannot establish a
Fifth Amendment due process violation based on the BIA’s denial
of a motion to reopen because an alien in those circumstances has
no constitutionally protected liberty interest in the granting of a
motion to reopen. See Scheerer, 513 F.3d at 1253 (“Because
Scheerer has no constitutionally protected interest either in the
granting of his motions [to reopen and to reconsider] or in
adjustment of status, he cannot establish a due process violation
based on the BIA’s decisions.”); Butalova, 768 F.3d at 1183 (“An
alien, however, does not have a constitutionally protected interest
in discretionary forms of relief, such as the granting of a motion to
reopen.”).
Having determined Ponce Flores’s ineffective assistance
claim raises no colorable due process violation that we can review,
we consider whether his ineffective assistance claim otherwise
presents a reviewable legal question.
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21-10600 Opinion of the Court 29
D. Ineffective Assistance Claim Under Matter of Lozada
Examination of our jurisdiction over an ineffective
assistance claim requires some background about that type of
claim. Under § 1362, Ponce Flores has a right to counsel at his own
expense and therefore is entitled to effective assistance of the
counsel he retains. Dakane, 399 F.3d at 1273 (citing 8 U.S.C.
§ 1362). 8 The BIA permits an alien to seek to reopen removal
proceedings based on a claim of ineffective assistance of his
retained counsel. Id.; Matter of Lozada, 19 I. & N. Dec. at 638-39.
To do so, the BIA requires the alien to meet three procedural
requirements and show prejudice resulting from counsel’s
deficiencies. Matter of Lozada, 19 I. & N. Dec. at 639-40; Gbaya,
342 F.3d at 1223 (“The BIA does not abuse its discretion by filtering
ineffective assistance of counsel claims through the screening
requirements of Lozada . . . .”).
Procedurally, Lozada requires that an ineffective assistance
claim be supported by: (1) an affidavit attesting to the relevant facts
about the agreement with former counsel about actions to be taken
and former counsel’s representations in that regard; (2) evidence
that former counsel was informed of the allegations and provided
an opportunity to respond and of former counsel’s response, if any;
and (3) evidence as to whether the alien filed a complaint against
8 While Dakane involved an inadmissible alien, § 1362 does not distinguish
between inadmissible and removable aliens. See 8 U.S.C. § 1326.
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30 Opinion of the Court 21-10600
former counsel with the appropriate disciplinary authorities. 19 I.
& N. Dec. at 639.
“[I]n addition to substantial, if not exact, compliance with
the procedural requirements of Lozada, a petitioner claiming
ineffective assistance of counsel . . . must also show prejudice.”
Dakane, 399 F.3d at 1274 & n.7 (citing Matter of Lozada, 19 I. & N.
Dec. at 640). Under Lozada’s prejudice component, “[p]rejudice
exists when the performance of counsel is so inadequate that there
is a reasonable probability that but for the attorney’s error, the
outcome of the proceedings would have been different.” Id. at
1274.
With this background, our threshold question is whether we
have jurisdiction to review the BIA’s denial of Ponce Flores’s
ineffective assistance claim. Ponce Flores argues he raises these
two reviewable legal questions: (1) the BIA erred in suggesting he
failed to comply with Lozada’s procedural requirements, when in
fact he fully complied; and (2) the BIA erred in its Lozada prejudice
determination.
As to the procedural requirements, the BIA cited the proper
legal standard for ineffective assistance claims from its own Lozada.
Although the proper legal standard is a reviewable legal question,
we cannot make a legal error out of a BIA factual determination
that the evidence did or did not satisfy Lozada’s three procedural
requirements. See Alvarez Acosta, 524 F.3d at 1196-97. Whether
in fact Ponce Flores’s particular evidence was sufficient to satisfy or
substantially comply with the BIA’s Lozada procedural
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21-10600 Opinion of the Court 31
requirements does not present a legal question that this Court has
jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D).
Alternatively, and in any event, the BIA did not find that
Ponce Flores failed to comply with Lozada’s procedural
requirements. The BIA instead concluded that “even if [it] were to
find [Ponce Flores] had complied with the Lozada requirements,
[Ponce Flores] must also establish he suffered prejudice as a result
of his former attorneys’ alleged ineffectiveness.” The BIA then
found that Ponce Flores had “identified deficiencies in his
representation by former attorneys,” but concluded he had not
shown he suffered prejudice as a result. In short, there is no merit
to Ponce Flores’s claim that the BIA committed legal error with
respect to Lozada’s three procedural requirements.
As for the BIA’s prejudice determination, the BIA presumed
Ponce Flores’s credibility and reviewed all the evidence, including
his new evidence, de novo. The BIA then determined he “ha[d]
not demonstrated that but for the deficiency in his prior counsels’
representation, he would have met his burden of proof to
demonstrate the requisite hardship to his qualifying relative
children.” As a result, Ponce Flores had not demonstrated he
“suffered prejudice as a result of his former attorneys’ alleged
ineffectiveness so as to have affected the outcome of these
proceedings.”
In other words, the BIA’s analysis of Lozada’s prejudice
prong was commensurate with its de novo hardship
determination. Stated another way, the BIA reviewed de novo all
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32 Opinion of the Court 21-10600
of Ponce Flores’s new evidence and made its own determination
that this new evidence still would not satisfy Ponce Flores’s burden
to show the requisite hardship to his daughters under
§ 1229b(b)(1)(D).
As already discussed, under Flores-Alonso we lack
jurisdiction to review directly the BIA’s hardship determination
under § 1229b(b)(1)(D). 36 F.4th at 1099-1100. Therefore, we are
also barred by § 1252(a)(2)(B)(i) from reviewing a challenge to the
BIA’s hardship determination made in denying a motion to reopen.
See Guzman-Munoz, 733 F.3d at 1314. The question then
becomes, do we have jurisdiction to review the BIA’s prejudice
determination under Lozada when it turned on the BIA’s de novo
hardship determination based on Ponce Flores’s new evidence?
Of course, whether the BIA applied the correct prejudice
standard is a legal question we retain jurisdiction to review under
§ 1252(a)(2)(D). In this case, there is no dispute that the BIA
correctly stated the prejudice standard from Lozada. The BIA
accepted all of Ponce Flores’s evidence and determined it would
not have affected “the outcome of these proceedings.” Because the
BIA applied the proper legal standards, it did not abuse its
discretion. See Ferreira, 714 F.3d at 1243.
Ponce Flores’s argument isolates the BIA’s finding that he
failed to meet his burden of proof as to hardship. He claims the
BIA abused its discretion because his new evidence established the
requisite hardship and that the outcome of his proceedings would
have been different. The first problem for Ponce Flores is that his
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21-10600 Opinion of the Court 33
“argument that the BIA abused its discretion by failing to weigh an
alien’s factual scenario presents a ‘garden-variety abuse of
discretion argument—which can be made by virtually every alien
subject to a final removal order—[and] does not amount to a legal
question under § 1252(a)(2)(D).’” Butalova, 768 F.3d at 1183(alteration in original) (quoting Alvarez Acosta, 524 F.3d at 1196-
97).
The second problem for Ponce Flores’s particular case is that
whether an alien carries his burden to show the requisite hardship
under § 1229b(b)(1)(D) is a factual finding that § 1252(a)(2)(B)(i)
deprives us of jurisdiction to review. See Flores-Alonso, 36 F.4th
at 1099-1100. And, because the BIA’s denial of Ponce Flores’s
ineffective assistance claim raised in his motion to reopen rested
solely upon, and was commensurate with, the BIA’s fact-based
hardship determination, we conclude § 1252(a)(2)(B)(i) deprives us
of jurisdiction to review the BIA’s prejudice determination under
the circumstances of this case.
Ponce Flores relies on Sow, where the alien’s motion to
remand was based on ineffective assistance, and we reviewed the
BIA’s prejudice determination and reversed. See Sow, 949 F.3d at
1318-19 (concluding “Sow established that counsel’s deficiencies
prejudiced his case” and that “the unique facts of Sow’s case present
the rare situation where we must find that the BIA was arbitrary
and capricious in exercising its discretion” in denying his motion to
remand).
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34 Opinion of the Court 21-10600
Sow does not help Ponce Flores because there was no
§ 1229b(b)(1) hardship determination at the heart of the BIA’s
ruling in that case. The relief Sow sought was asylum, which is
specifically exempted from the jurisdiction-stripping provision at
issue here. Id. at 1314. Specifically, § 1252(a)(2)(B) deprives courts
of jurisdiction to review “any other decision or action” by the
Attorney General that the INA specifies is in the Attorney General’s
discretion “other than the granting of relief under section 1158(a),”
which is the asylum statute. See 8 U.S.C. § 1252(a)(2)(B)(ii). There
was no jurisdiction-stripping provision in Sow to bar this Court’s
review of the BIA’s prejudice determination.
In sum, to the extent Ponce Flores’s challenge to the denial
of his motion to reopen rests on an argument that the BIA erred in
ruling that he had not demonstrated that but for his counsel’s
deficient performance, he would have proved the requisite
hardship under § 1229b(b)(1)(D), we lack jurisdiction to entertain
this claim under § 1252(a)(2)(B)(i).
PETITION DISMISSED IN PART AND DENIED IN
PART.