Francisco Kimeu v. William P. Barr ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2738
___________________________
Francisco Kimeu
lllllllllllllllllllllPetitioner
v.
William P. Barr
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: August 4, 2020
Filed: August 28, 2020
[Unpublished]
____________
Before KELLY, ERICKSON, and STRAS, Circuit Judges.
____________
PER CURIAM.
Francisco Kimeu, a citizen of Kenya, petitions for review of an order of the
Board of Immigration Appeals (BIA), which upheld an immigration judge’s (IJ’s)
denial of his application for cancellation of removal and denied his request to remand
to the IJ based on ineffective assistance of counsel. Kimeu challenges only the denial
of his request to remand, which we review for abuse of discretion, but because Kimeu
sought discretionary relief in the form of cancellation of removal, our review is
limited to constitutional claims and questions of law, which we review de novo. See
Sharif v. Barr, 965 F.3d 612, 618-20 (8th Cir. 2020); Zeah v. Holder, 744 F.3d 577,
580-81 (8th Cir. 2014).
We conclude that Kimeu, who asserts he did not receive a fair hearing before
the IJ, cannot pursue a constitutional claim for ineffective assistance of counsel
because he has no protected property or liberty interest in the discretionary relief of
cancellation of removal. See Etchu-Njang v. Gonzales, 403 F.3d 577, 585 (8th Cir.
2005) (concluding that even if counsel was ineffective, there was no due process
violation because applicant has no constitutionally protected liberty interest in
cancellation-of-removal relief); see also Obleshchenko v. Ashcroft, 392 F.3d 970, 971
(8th Cir. 2004) (concluding that because applicants had no protected liberty or
property interest in the discretionary statutory relief they sought, they had no right to
effective assistance of counsel).
To the extent Kimeu asked the BIA to exercise its discretionary authority to
remand the proceedings based on ineffective assistance of counsel, we conclude that
the BIA did not abuse its discretion in denying remand. See Singh v. Lynch, 803
F.3d 988, 993-94 (8th Cir. 2015) (concluding that although there is no constitutional
right to effective assistance of counsel in a removal proceeding, BIA may exercise
discretion to remand based on counsel’s ineffectiveness, and this court may review
that discretionary decision; to prevail, applicant was required to show (1) counsel’s
performance was so ineffective it rendered proceeding fundamentally unfair, and (2)
he was prejudiced by counsel’s performance). Although Kimeu urges this court to
adopt a per se presumption of prejudice, this court has not recognized such a
presumption in immigration proceedings. See Paz v. Ashcroft, 113 F. App’x 736, 736
(8th Cir. 2004) (unpublished per curiam); cf. Caballero-Martinez, 920 F.3d 543, 548
(8th Cir. 2019) (rejecting petitioner’s argument that In re L-O-G-, 21 I. & N. Dec. 413(BIA 1996), established a lower standard requiring remand when presented with
-2-
“potentially worthwhile new evidence”; BIA applied correct legal standard requiring
applicant to demonstrate new evidence “would likely change” the result).
Even assuming counsel’s performance was deficient, we conclude the BIA
acted within its discretion by applying the correct standards and rationally concluding
that Kimeu did not demonstrate the requisite prejudice. See Ortiz-Puentes v. Holder,
662 F.3d 481, 485 n.2 (8th Cir. 2011) (applicant must show reasonable probability
that, but for counsel’s alleged errors, the result would have been different);
Obleshchenko, 392 F.3d at 972 (applicant must show counsel’s performance was so
inadequate it “may well have resulted in a deportation that would not otherwise have
occurred,” akin to a “reasonable probability” standard) (internal quotations and
citations omitted). Notably, the IJ had an independent basis—that Kimeu submitted
a fraudulent divorce decree to procure an immigration benefit—to conclude that
Kimeu lacked good moral character and to exercise his discretion to deny
cancellation-of-removal relief. Kimeu did not challenge that ruling before the BIA
and cannot belatedly do so here. See Chak Yiu Lui v. Holder, 600 F.3d 980, 984 (8th
Cir. 2010) (“This court is either without jurisdiction to review, or simply precluded
from reviewing, an issue not raised before the BIA.”).
Accordingly, we deny the petition for review.
______________________________
-3-