Daniel Acosta-Sarmiento v. Jefferson Sessions, III ( 2018 )

Case: 17-60603 Document: 00514590461 Page: 1 Date Filed: 08/08/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60603 FILED
Summary Calendar August 8, 2018
Lyle W. Cayce
Clerk
DANIEL MAREL ACOSTA-SARMIENTO,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 285 863
Before BENAVIDES, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Daniel Marel Acosta-Sarmiento, a native and citizen of Honduras,
petitions this court for review of an order of the Board of Immigration Appeals
(BIA) denying his motion to reopen in which he contended that he received
ineffective assistance of counsel during his removal proceedings. In those
proceedings, he unsuccessfully raised several grounds for relief, including that
he was entitled to withholding of removal on the basis that he feared
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-60603 Document: 00514590461 Page: 2 Date Filed: 08/08/2018
No. 17-60603
persecution in Honduras because of his membership in a particular social
group, specifically, his family. We review the decision to deny the motion to
reopen for abuse of discretion and will uphold it “so long as it is not capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
aberrational that it is arbitrary rather than the result of any perceptible
rational approach.” Mai v. Gonzales, 473 F.3d 162, 164 (5th Cir. 2006)
(internal quotation marks and citation omitted).
In his brief in this court, Acosta-Sarmiento contends that his counsel was
ineffective because he misstated the applicable particular social group, did not
argue that there was a nexus between Acosta-Sarmiento’s group membership
and the harm he suffered, and neglected to assert that Acosta-Sarmiento was
not merely the victim of generalized violence or civil unrest. Acosta-Sarmiento
did not raise these claims of ineffective assistance of counsel in his motion to
reopen. Thus, we lack jurisdiction to consider them. See Wang v. Ashcroft, 260
F.3d 448, 452-53 (5th Cir. 2001); see also 8 U.S.C. § 1252(d)(1).
Though Acosta-Sarmiento faults the BIA for ignoring his contention that
counsel was ineffective for not presenting a legal argument in support of the
withholding of removal claim, he does not identify a specific, meritorious legal
argument neglected by counsel and overlooked by the BIA. To the extent that
he contends that the BIA overlooked counsel’s alleged missteps in the framing
of his social group and the nexus between the group and the harm he endured,
he did not raise these arguments in his motion to reopen, and so the BIA did
not abuse its discretion in not mentioning them. Cf. Diaz-Resendez v. INS, 960
F.2d 493, 495 (5th Cir. 1992) (explaining that the BIA abuses its discretion
where it fails to meaningfully address material factors relating to an alien’s
claim).
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Case: 17-60603 Document: 00514590461 Page: 3 Date Filed: 08/08/2018
No. 17-60603
The sole claim of ineffective assistance of counsel that Acosta-Sarmiento
raised in both his motion to reopen and his brief in this court is that counsel
neglected to challenge the immigration judge’s (IJ’s) and BIA’s finding that
Acosta-Sarmiento was not physically harmed or personally threatened.
However, even if counsel’s oversight was sufficiently unprofessional to rise to
the level of ineffective assistance, Acosta-Sarmiento has not shown how this
error prejudiced his case. See Mai, 473 F.3d at 165. Had counsel convinced
the IJ or the BIA that Acosta-Sarmiento had been physically harmed or
threatened, this would not have overcome the determination, which was fatal
to his claim for relief, that he had not shown that he was harmed on account
of his family membership. Thus, the BIA did not abuse its discretion in
determining that Acosta-Sarmiento failed to make a prima facie showing that
had counsel raised this argument, there is a reasonable likelihood that he
would be entitled to withholding of removal. See Mai, 473 F.3d at 164;
Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994).
The petition for review is DISMISSED in part and DENIED in part.
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