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


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  •      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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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).
    2
    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.
    3
    

Document Info

Docket Number: 17-60603

Filed Date: 8/8/2018

Precedential Status: Non-Precedential

Modified Date: 8/8/2018