Gustavo Figueroa Nieves v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-3452
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GUSTAVO FIGUEROA NIEVES; PATRICIA ISABEL FIGUEROA,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Decision of
the Board of Immigration Appeals
(Agency Nos. A202-050-840, A202-050-841)
Immigration Judge: David Cheng
______________
Submitted under Third Circuit L.A.R. 34.1(a)
July 8, 2021
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Before: SHWARTZ, KRAUSE, and RENDELL, Circuit Judges.
(Filed: July 8, 2021)
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OPINION*
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SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Gustavo Figueroa Nieves and Patricia Isabel Figueroa (“Petitioners”) petition for
review of a decision of the Board of Immigration Appeals (“BIA”) concluding that
Petitioners’ counsel did not render ineffective assistance and affirming the Immigration
Judge’s (“IJ”) denial of cancellation of removal. We will: (1) deny the petition in part
because Petitioners did not demonstrate prejudice from their counsel’s allegedly deficient
representation; and (2) dismiss the petition in part because Petitioners did not exhaust
their U visa argument before the BIA.
I
Petitioners, a married couple, are natives and citizens of Ecuador who entered the
United States without authorization.1 They have two children: B.E., whose biological
father was removed to Ecuador, and A.F., who is Petitioners’ biological daughter.
In 2014, Petitioners filed a counseled asylum application, which they later
withdrew. Three years later, the Department of Homeland Security (“DHS”) served
Petitioners with Notices to Appear (“NTA”) before an IJ, charging them with
removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States
without admission or parole. Before the IJ, they admitted the factual allegations in the
NTAs and conceded removability.
1
Petitioners alleged that they crossed the border into Arizona at different points in
2000.
2
Attorney Leonard Hecht entered an appearance and filed applications for
cancellation of removal for Petitioners.2 In connection with these applications, Hecht
provided: (1) a psychological report indicating B.E. was diagnosed with Separation
Anxiety Disorder related to his biological father’s removal to Ecuador and his possible
relocation there; (2) school records for B.E. and A.F.; (3) evidence of the family’s
physical presence in the United States; (4) tax records; (5) a letter from a clergyman
attesting to Petitioners’ good moral characters; (6) biographical documents including
birth and marriage certificates; and (7) country condition reports for Ecuador.
Attorney Vita Flysic, Hecht’s colleague, appeared with Petitioners at the merits
hearing. Nieves explained to the IJ that if he and Figueroa were removed, they would
take B.E. and A.F. with them to Ecuador. He testified that B.E. does not want to move to
Ecuador because he does not know anyone there and speaks very little Spanish.
Figueroa similarly testified that B.E. is very nervous about having to move to Ecuador.
Nieves indicated that while the psychologist expressed concern about B.E., he did not
have similar concerns for A.F., even though she also speaks very little Spanish. Finally,
Nieves testified that he was worried about B.E. and A.F.’s educational opportunities and
health insurance coverage in Ecuador.
The IJ denied the applications for cancellation of removal and ordered Petitioners
removed to Ecuador. The IJ concluded that Petitioners failed to establish that removal
2
Hecht was also Petitioners’ counsel for their previous asylum application.
3
“would result in exceptional and extremely unusual hardship” to their children because
the hardship the children would face is “what would be ordinarily expected for an
individual who has been [in the United States] for a period of time and now is subject to
removal.” A.R. 256. The IJ also noted that B.E.’s Separation Anxiety Disorder did not
impose an exceptional hardship because he would not be separated from Petitioners or his
biological father since they would all be in Ecuador.
Petitioners retained new counsel who appealed the IJ’s decision and filed a motion
asking the BIA to remand their case to the IJ due to ineffective assistance of counsel.
They argued that Hecht and his law firm provided ineffective assistance by failing to
attend certain hearings before the IJ, sending unprepared associates to represent
Petitioners at other hearings, failing to prepare Petitioners to testify at their merits
hearing, failing to call the psychologist to testify, and not timely submitting hardship
evidence.3 They included documents regarding a then-ongoing fraud suit against Hecht’s
firm, explaining that he had a history of filing meritless asylum applications that triggered
deportation proceedings for several clients as well as two unsigned, undated Spanish-
language letters and several family photographs.
The BIA dismissed the appeal and denied the motion to remand. The BIA: (1)
adopted the IJ’s reasoning for denying cancellation of removal; (2) rejected Petitioners’
ineffective assistance claim because they did not notify their former counsel or the bar
3
Contrary to the Government’s assertion, Petitioners did raise the issue of counsel
failing to prepare them for their merits hearing in their brief to the BIA.
4
about counsel’s alleged misconduct and thus failed to comply with Matter of Lozada, 19
I. & N. Dec. 637 (B.I.A. 1988); and (3) concluded that, even if Petitioners had complied
with Lozada, remand for a new hearing was not warranted because they could not
demonstrate prejudice since the proposed additional evidence did not create a reasonable
likelihood that the outcome of the proceedings would have been different.
Petitioners petition for review.
II4
A
To prevail on a claim of ineffective assistance of counsel in removal proceedings,
a petitioner “must show (1) that he was prevented from reasonably presenting his case
and (2) that substantial prejudice resulted.” Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d
Cir. 2007) (quotation marks omitted). Additionally, a petitioner must satisfy Lozada’s
three procedural requirements:
(1) support the claim with an affidavit attesting to the relevant facts;
(2) inform former counsel of the allegations and provide counsel with the
opportunity to respond (this response should be submitted with the alien’s
pleading asserting ineffective assistance); and (3) state whether a complaint
4
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1003.2(a). We
have jurisdiction under 8 U.S.C. § 1252.
“When, as here, the BIA affirms an IJ’s decision and adds analysis of its own, we
review both the IJ’s and the BIA’s decisions.” Lupera-Espinoza v. Att’y Gen., 716 F.3d
781, 785 (3d Cir. 2013) (quotation marks omitted). “We review the BIA’s denial of a
motion to remand for abuse of discretion and review underlying findings of fact for
substantial evidence.” Tilija v. Att’y Gen., 930 F.3d 165, 170 (3d Cir. 2019). The BIA
abuses its discretion if its decision is “arbitrary, irrational, or contrary to law.” Id.(quotation marks omitted).
5
has been filed with appropriate disciplinary authorities regarding [the
allegedly deficient] representation, and if not, why not.
Id. (alteration in original) (quotation marks omitted). These procedural requirements
“serve as a threshold and a screening mechanism to help the agency assess the substantial
number of ineffective assistance claims that it receives.” Id. (quotation marks omitted).
The parties debate whether Petitioners satisfied Lozada. We need not resolve that
debate because, even if we assume Lozada’s requirements were satisfied or excused,
substantial evidence supports the BIA’s conclusion that Petitioners did not demonstrate
prejudice. To show prejudice, there must be “a reasonable likelihood that the result
would have been different if the error[s] . . . had not occurred.” Id. at 159 (alteration in
original) (quotation marks omitted). The evidence Petitioners claim counsel should have
presented would not have changed the result of the proceedings. First, the additional
letters were properly discounted because they were untranslated and unsigned, and the
photographs describe only “what [Petitioners’] housing accommodations in Ecuador
would look like.” Pet’r Br. at 32. These living conditions alone do not demonstrate
Petitioners’ children would face exceptional or extremely unusual hardship in Ecuador.
See Matter of Andazola-Rivas, 23 I. & N. Dec. 319, 324 (B.I.A. 2002) (“While almost
every case will present some particular hardship, the fact pattern presented here is . . . not
substantially different from those that would normally be expected upon removal to a less
developed country.”). Second, the psychologist’s report was presented to the IJ and
Petitioners have not explained how his live testimony would differ from his report. See
6
Al-Saka v. Sessions, 904 F.3d 427, 432 (6th Cir. 2018) (concluding there was no
prejudice from counsel failing to call certain witnesses because there was “no affidavit or
other record evidence showing what new insights the witnesses could bring or how those
insights could have changed the outcome of [the petitioner’s] case”). Moreover, the IJ
reasonably concluded that B.E. “would not suffer from . . . separation anxiety because
both his parents along with the rest of his family members would be returning to Ecuador
with him.” A.R. 257. Third, it is unclear how Petitioners’ testimony regarding hardship
would have differed had Hecht prepared them more fully for their merits hearing, since
the evidence before the IJ indicated that B.E. and A.F. were “healthy children, doing
well.” A.R. 257; cf. Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 388-89 (3d Cir. 2020)
(concluding that the petitioner was prejudiced by counsel’s failure to introduce evidence
of the “children’s medical hardships,” which “led the IJ to conclude that the children’s
health was generally good” (quotation marks omitted)); Contreras v. Att’y Gen., 665 F.3d
578, 588 (3d Cir. 2012) (finding no prejudice where the petitioners provided only a
“speculative possibility that [they] might . . . become eligible for relief from removal”).
Thus, substantial evidence supported the BIA’s conclusion that Petitioners were not
prejudiced by their former counsel’s alleged ineffective assistance.
B
7
Petitioners also request that we hold the appeal in abeyance or remand their case to
the BIA, pending resolution of their recently-filed U visa applications.5 Because
Petitioners never raised this issue before the BIA, we lack jurisdiction to review it. See 8
U.S.C. 1252(d)(1).6 Additionally, an opportunity to apply for a U visa is not a proper
ground for remand because United States Citizenship and Immigration Services
(“USCIS”) has “sole jurisdiction over all petitions for U nonimmigrant status” visas, 8
C.F.R. § 214.14(c)(1), and filing for a U visa “has no effect on [DHS’s] authority to
execute a final order [of removal],” id. § 214.14(c)(1)(ii). We will therefore dismiss
Petitioners’ request to remand based on their pending U visa applications.
5
“U visas allow noncitizen victims of certain crimes who have suffered
‘substantial physical or mental abuse,’ and who are likely to be helpful in investigating
the crime, to remain in the United States as lawful temporary residents.” Sunday v. Att’y
Gen., 832 F.3d 211, 213 (3d Cir. 2016) (quoting 8 U.S.C. § 1101(a)(15)(U)).
6
Petitioners argue that this issue was presented to the BIA because “in informing
the BIA of the perjury committed by [Hecht] and the substantial injury that [Petitioners]
suffered . . . [they] put the BIA on notice of their eligibility for U-Visa relief.” Pet’r Br.
at 50. While we have described our exhaustion policy as “liberal,” such that “an alien
need not do much to alert the [BIA] that he is raising an issue,” Joseph v. Att’y Gen., 465
F.3d 123, 126 (3d Cir. 2006), Petitioners’ discussion of their former counsel’s alleged
misconduct of filing meritless asylum applications is too tangential to have put the BIA
on notice of the U visa claim that they now raise, see, e.g., Zhi Fei Liao v. Att’y Gen.,
910 F.3d 714, 718 (3d Cir. 2018) (“[A] petitioner who completely omits an issue fails to
meet the exhaustion requirement . . . .”); Bin Lin v. Att’y Gen., 543 F.3d 114, 122 (3d
Cir. 2008) (“Out of respect for the administrative process, we will not require the BIA to
guess which issues have been presented and which have not.”).
8
III
For these reasons, we will deny the petition for review in part and dismiss it in
part.7
Because Petitioners’ petition lacks merit, we will deny their motion to stay
7
removal.
9