Herrera-Antunez v. Garland ( 2021 )

19-2253
Herrera-Antunez v. Garland
BIA
A206 436 152
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 28th day of May, two thousand twenty-one.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 RICCY ISELA HERRERA-ANTUNEZ,
14 Petitioner,
15
16 v. 19-2253
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Nicholas J. Mundy, Esq.,
24 Brooklyn, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Justin R. Markel, Senior
28 Litigation Counsel; Sharon M.
1 Clay, Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition is DENIED.
8 Petitioner Riccy Isela Herrera-Antunez, a native and
9 citizen of Honduras, seeks review of a June 11, 2019, BIA
10 decision denying her motion to reopen. In re Riccy Isela
11 Herrera-Antunez, No. A 206 436 152 (B.I.A. Jun. 11, 2019).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history.
14 We review the agency’s denial of a motion to reopen for
15 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
16 138, 168–69 (2d Cir. 2008). “An abuse of discretion may be
17 found in those circumstances where the [BIA’s] decision
18 provides no rational explanation, inexplicably departs from
19 established policies, is devoid of any reasoning, or contains
20 only summary or conclusory statements; that is to say, where
21 the [BIA] has acted in an arbitrary or capricious manner.” Ke
22 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
23 2001) (internal citations omitted).
2
1 The BIA did not abuse its discretion. As Herrera-Antunez
2 concedes, her argument under Pereira v. Sessions, 138 S. Ct.
3 2105 (2018), that her notice to appear (“NTA”) was
4 insufficient to vest jurisdiction with the immigration court,
5 is foreclosed by our decision in Banegas Gomez v. Barr, 922
6 F.3d 101 (2d Cir. 2019). In Banegas Gomez, we held that
7 Pereira does not “void jurisdiction in cases in which an NTA
8 omits a hearing time or place.” 922 F.3d at 110. The
9 regulations do not require an NTA to specify the time and
10 date of the initial hearing, “so long as a notice of hearing
11 specifying this information is later sent to the alien.” Id.
12 at 112 (quotation marks and emphasis omitted). Although
13 Herrera-Antunez’s NTA did not specify the time and date of
14 her initial hearing, she received hearing notices and
15 appeared at her hearings.
16 The BIA also did not abuse its discretion in declining
17 to reopen based on ineffective assistance of counsel. To
18 succeed on her ineffective assistance claim, Herrera-Antunez
19 had “to show . . . that competent counsel would have acted
20 otherwise, and . . . that [s]he was prejudiced by h[er]
21 counsel’s performance.” Romero v. U.S. INS, 399 F.3d 109,
3
1 112 (2d Cir. 2005). “[P]rejudice is shown where ‘there is a
2 reasonable probability that, but for counsel’s unprofessional
3 errors, the result of the proceeding would have been
4 different.’” United States v. Copeland, 376 F.3d 61, 73 (2d
5 Cir. 2004) (quoting Strickland v. Washington, 466 U.S. 668,
6 694 (1984)).
7 Herrera-Antunez argues that her former attorney should
8 have objected to admission of the credible fear interview
9 record that the immigration judge (“IJ”) relied on in making
10 an adverse credibility determination in the underlying
11 proceedings. This claim is unpersuasive: Herrera-Antunez’s
12 former counsel confirmed that she reviewed the interview with
13 Herrera-Antunez when preparing for the hearing, and Herrera-
14 Antunez told her that the interview record was correct.
15 Counsel therefore had no reason to object to the interview.
16 Further, Herrera-Antunez has not identified any basis for an
17 objection or that the result would have been different had an
18 objection been made because the IJ independently assessed the
19 reliability of the interview record. See Ming Zhang v.
20 Holder, 585 F.3d 715, 723–25 (2d Cir. 2009); Ramsameachire v.
21 Ashcroft, 357 F.3d 169, 179–80 (2d Cir. 2004).
4
1 For the foregoing reasons, that the petition for review
2 is DENIED. All pending motions and applications are DENIED
3 and stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
5