Rosa Maria Paz v. John Ashcroft , 113 F. App'x 736 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2301
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Rosa Maria Paz, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board of
* Immigration Appeals
John Ashcroft, United States *
Attorney General, * [Unpublished]
*
Respondent. *
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Submitted: October 29, 2004
Filed: November 24, 2004
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Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Rosa Maria Paz, a Guatemalan citizen, petitions for review of an order of the
Board of Immigration Appeals (BIA) denying her motions to reopen and for
reconsideration, in which she contended that she had been denied due process in her
asylum proceedings because her counsel had been ineffective. For reversal, she
argues that her counsel’s suspension from practicing law showed per se that she was
prejudiced by counsel’s representation, and she points out numerous deficiencies by
counsel to show further prejudice. For the reasons discussed below, we deny the
petition.
We review for abuse of discretion denials of motions to reopen and for
reconsideration, see De Jimenez v. Ashcroft, 370 F.3d 783, 790 (8th Cir. 2004)
(motion for reconsideration); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir.
2003) (motion to reopen), and we find none here because Paz did not show that she
was prejudiced by Burns’s representation. See Nativi-Gomez, 344 F.3d at 807
(noting that alien in deportation proceeding has no Sixth Amendment right to counsel
but does have due process rights, and that some courts have found ineffective
assistance of counsel as basis for due process violation, but the court did not decide
the question); Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (due process
challenges to deportation proceedings require showing of prejudice to succeed;
prejudice is found when counsel’s performance was so inadequate that it may have
affected outcome of proceedings). Paz’s asylum application was originally denied
because she showed no nexus between her alleged past persecution and her political
opinion, imputed or otherwise; and when moving to reopen and for reconsideration,
Paz again showed no evidence of a nexus.
Additionally, we disagree with Paz that an attorney’s suspension shows
prejudice per se, cf. United States v. Ross, 338 F.3d 1054, 1056 (9th Cir. 2003) (per
curiam) (attorney’s bar status is not dispositive of Sixth Amendment ineffective-
assistance claim), cert. denied, 124 S. Ct. 1187 (2004); and we are not persuaded by
the examples Paz has given of how she was prejudiced by counsel’s representation.
For example, Paz’s application, although initially incomplete, was completed by the
immigration judge at the hearing; pictures of Paz’s home burning were submitted at
hearing; and the assistant mayor’s letter was read into the record at the hearing.
Further, Paz fails to explain how witness testimony (which she does not specify) and
her mother’s letter could have changed the outcome of the asylum proceedings; and
even if counsel made no objections or a closing argument at the hearing, it was not
a formal trial subject to evidentiary rules, see Henry v. INS, 74 F.3d 1, 6 (1st Cir.
1996) (traditional rules of evidence do not apply in immigration hearings).
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Accordingly, we deny the petition.
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