Patino v. Holder , 520 F. App'x 18 ( 2013 )

12-726-ag
Patino v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 4th day of April, two thousand thirteen.
4
5 PRESENT:
6 BARRINGTON D. PARKER,
7 RAYMOND J. LOHIER, JR.,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _____________________________________
11
12 LENIN PATINO,
13
14 Petitioner,
15
16 v. 12-726-ag
17
18 ERIC H. HOLDER, JR., United States Attorney
19 General,
20
21 Respondent.
22 _____________________________________
23
24
25 FOR PETITIONER: Glenn L. Formica and Elyssa N. Williams,
26 Formica Williams, P.C., New Haven, CT.
27
1 FOR RESPONDENT: Laura Halliday Hickein, Trial Attorney, Shelley
2 R. Goad, Assistant Director, Office of
3 Immigration Litigation; Stuart F. Delery, Acting
4 Assistant Attorney General, Civil Division, U.S.
5 Department of Justice, Washington, D.C.
6
7
8 Appeal from a January 20, 2012 decision of the Board of Immigration Appeals (“BIA”)
9 reissuing its January 15, 2009 decision.
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DISMISSED in part and DENIED in part.
12 Petitioner Lenin Patino, a citizen of Ecuador, appeals from a decision of the BIA affirming
13 the January 23, 2008 decision of Immigration Judge Michael W. Straus (the “IJ”), which denied
14 his application for voluntary departure pursuant to 8 U.S.C. § 1229c and found him removable as
15 charged. On appeal, Patino contends that (1) the IJ erred in denying, and the BIA erred in
16 affirming the denial of, his application for voluntary departure, and (2) his prior counsel provided
17 ineffective assistance. We assume the parties’ familiarity with the facts and record of the prior
18 proceedings, which we reference only as necessary to explain our decision.
19 I. Legal Standards
20 When, as here, “the BIA does not expressly adopt the IJ’s decision, but its brief opinion
21 closely tracks the IJ’s reasoning, this Court may consider both the IJ’s and the BIA’s opinions for
22 the sake of completeness.” Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010) (quotation marks
23 omitted). We review factual findings under the substantial evidence standard and legal questions
24 de novo. Id.
2
1 II. Denial of Application for Voluntary Departure
2 Patino claims that the IJ’s fact-finding was “improper and inaccurate” and that the IJ
3 “weighed the adverse factors in the case too heavily and did not consider relevant equitable
4 factors.” This Court lacks jurisdiction to review a denial of discretionary relief, including a
5 denial of a request for an order of voluntary departure under 8 U.S.C. § 1229c. See 8 U.S.C.
6 § 1229c(f); 8 U.S.C. § 1252(a)(2)(B)(i); Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d
7 Cir. 2007) (“We are barred by statute from reviewing the denial of a request for voluntary
8 departure.”). While that jurisdictional bar does not preclude “‘review of constitutional claims or
9 questions of law raised upon a petition for review,’” Carcamo, 498 F.3d at 97 (quoting 8 U.S.C. §
10 1252(a)(2)(D)), it does preclude review of a petition that “essentially disputes the correctness of
11 an IJ’s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional
12 claim nor a question of law,” id. (quotation marks omitted). We reject Patino’s repeated attempts
13 to characterize the IJ’s decision as “flawed by an error of law.” He clearly challenges the
14 agency’s exercise of discretion and presents no question of law. See Xiao Ji Chen v. U.S. Dep’t
15 of Justice, 471 F.3d 315, 330 (2d Cir. 2006) (noting that petitioner cannot overcome jurisdictional
16 bar “by using the rhetoric of a ‘constitutional claim’ or ‘question of law’ to disguise what is
17 essentially a quarrel about fact-finding or the exercise of discretion”).
18 To the extent Patino claims that the agency’s analysis was legally flawed because the
19 agency failed to consider all of the relevant factors necessary for a grant of voluntary departure,
20 we have jurisdiction to review that claim. See Felzcerek v. INS, 75 F.3d 112, 118 (2d Cir. 1996).
21 Nevertheless, we reject it. Although Patino correctly applied for voluntary departure under 8
3
1 U.S.C. § 1229c(a) because the application was filed prior to the conclusion of his removal
2 proceedings, see In re Arguelles-Campos, 22 I. & N. Dec. 811, 813 (BIA 1999), the factors that
3 Patino claims the agency failed to consider relate to applications for voluntary departure under 8
4 U.S.C. § 1229c(b), which covers applications filed at the conclusion of removal proceedings.
5 With that distinction in mind, the IJ’s refusal to grant voluntary departure on the ground that he
6 did not merit such relief was entirely proper under § 1229c(a) and was well within its broad
7 discretion to do so. See In re Arguelles-Campos, 22 I. & N. Dec. at 819.
8 III. Ineffective Assistance of Counsel
9 Patino also contends that “[t]he ineffective assistance of [his] prior counsel . . . denied
10 [him] the opportunity to fully exhaust his legal options on appeal.” To prevail, petitioner must
11 show deficiencies in his counsel’s performance and prejudice resulting therefrom – in other
12 words, “that his counsel’s performance was so ineffective as to have impinged upon the
13 fundamental fairness of the hearing.” Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010)
14 (alteration and quotation marks omitted). We reject Patino’s claim because he does not specify
15 any relief for which he was eligible that his prior counsel failed to pursue.
16 We have considered Patino’s remaining arguments and conclude that they are without
17 merit. For the foregoing reasons, the petition for review is DISMISSED in part for lack of
18 jurisdiction and DENIED in part. The pending motion for a stay of removal is denied as moot.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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