Ares Ramirez-Morales v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 22, 2021
• Docket: 20-12469
• Status: Unpublished

Opinion

USCA11 Case: 20-12469 Date Filed: 03/22/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12469 Non-Argument Calendar ________________________

Agency No. A205-571-235

ARES RAMIREZ-MORALES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(March 22, 2021)

Before JORDAN, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12469 Date Filed: 03/22/2021 Page: 2 of 9

Ares Ramirez-Morales (“Ramirez”) seeks review of the Board of

Immigration Appeals’ (“BIA” or “Board”) order denying his motion to reopen

based on ineffective assistance of counsel. Ramirez argues that the BIA abused its

discretion by denying his motion to reopen because there was a reasonable

probability that the outcome of his underlying removal proceedings would have

been different but for his attorney’s error. Ramirez also argues that the BIA failed

to account for several factors that it should have considered and that the Board

didn’t provide a reasoned explanation for its actions. After careful review, we

disagree, and so we deny the petition.

I

The parties before us are familiar with the facts, so we discuss them only

briefly here. Ramirez, a native and citizen of Mexico, entered the United States

without authorization at some unknown time and place. In 2012, the Department

of Homeland Security initiated removal proceedings against him pursuant to 8

U.S.C. § 1182(a)(6)(A)(i), contending that because he hadn’t been paroled or

admitted into the United States, he could be removed. Ramirez conceded that he

was removeable and then applied for cancellation of removal under 8 U.S.C.

§ 1229b(b)(1).

That provision gives the Attorney General discretion to cancel a lawful order

of removal if an individual in Ramirez’s position can show (1) he has been

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physically present in the United States for a continuous period of not less than ten

years; (2) he has been a person of good moral character during that time; (3) he

hasn’t been convicted of certain criminal offenses; and (4) his removal would

result in exceptional and extremely unusual hardship to a qualifying relative,

including a United States citizen child. Immigration and Nationality Act

§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1). As to the last prong, the BIA has long

maintained that “the hardship to an alien’s relatives, if the alien is obliged to leave

the United States, must be substantially beyond the ordinary hardship that would

be expected when a close family member leaves this country.” Monreal-Aguinaga,

23 I. & N. Dec. 56, 62 (BIA 2001) (quotation marks omitted). Finally, even if an

individual proves that he meets each prong, that “only renders an alien eligible to

have his removal order cancelled.” Pereida v. Wilkinson, No. 19-438, slip op. at 2

(U.S. Mar. 4, 2021). The Attorney General may choose to cancel a removal order

under those circumstances, but that’s a matter of discretion. Id.

In his effort to show he qualified for cancellation of removal, Ramirez

included birth certificates for his four children, all citizens of the United States, and

letters of recommendation written in support of his application. In 2018, before a

merits hearing on Ramirez’s application, his former counsel moved to file out of

time certain additional documents—mostly tax returns and proof of good

character—in support of Ramirez’s application. When that hearing took place,

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another attorney representing Ramirez argued that the motion should be granted

because her firm had failed to request the documents from Ramirez in a timely

fashion and Ramirez shouldn’t suffer for the firm’s lack of diligence. The

immigration judge (“IJ”) denied the motion, and the hearing continued, with the IJ

hearing substantial testimony from Ramirez about his family and his economic

status in the United States and his prospects if he were removed to Mexico.

Ultimately, although the IJ found Ramirez credible and that he had satisfied the

physical-presence and good-moral-character requirements for cancellation of

removal, the IJ denied his application for cancellation of removal because, in the

IJ’s view, Ramirez hadn’t shown that his children would suffer the kind of

extraordinary hardship required by the statute. Ramirez appealed that decision to

the BIA, but the Board dismissed his appeal because it agreed with the IJ.

In 2020, Ramirez (represented by new counsel) moved to reopen his

removal proceedings on the basis that his prior counsel had rendered ineffective

assistance. The BIA denied the motion to reopen.

Ramirez petitioned for review of that decision.1

1 We review the denial of a motion to reopen an immigration proceeding for an abuse of discretion, under which we will only determine whether the BIA exercised its discretion arbitrarily or capriciously. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “The BIA abuses its discretion when it misapplies the law in reaching its decision,” or when it fails to follow its own precedents “without providing a reasoned explanation for doing so.” Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). The appellant bears a heavy burden in proving arbitrariness or capriciousness because motions to reopen in the context of removal proceedings are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th 4 USCA11 Case: 20-12469 Date Filed: 03/22/2021 Page: 5 of 9

II

Ramirez’s argument about the allegedly ineffective assistance rendered by

his former counsel sounds in due process. As this Court explained long ago, “the

Due Process Clause . . . gives rise to the right to effective assistance of counsel in

deportation proceedings.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th

Cir. 1999). And the BIA has said that the denial of that right can serve as the basis

for a motion to reopen a final order that denies relief. See Lozada, 19 I. & N. Dec.

637, 639 (BIA 1988).

But Ramirez lacks the necessary predicate for a right to effective assistance

of counsel—some “constitutionally protected liberty interest.” Mejia Rodriguez,

178 F.3d at 1146–48. “[U]nder our precedent, an alien does not have a

constitutionally protected interest in receiving discretionary relief from removal or

deportation.” Mohammed v. Ashcroft, 261 F.3d 1244, 1250 (11th Cir. 2001).

Without some constitutionally protected liberty interest, then, a person in

Ramirez’s position can’t show that he was “deprived of liberty without due process

of law.” Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). For

the same reason and by the same logic, such an individual can’t “demonstrate

Cir. 2009). We review any constitutional claim or question of law de novo. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir. 2008). An assertion that the agency failed to give reasoned consideration to an issue is a question of law that we review de novo. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). 5 USCA11 Case: 20-12469 Date Filed: 03/22/2021 Page: 6 of 9

prejudice, much less substantial prejudice, arising from the ineligibility for such an

‘act of grace’ because no standards exist for a court to determine whether the

executive would have granted the extraordinary relief anyway.” Mejia Rodriguez,

178 F.3d at 1148. And without both showings—a deprivation of liberty and

prejudice due to attorney error—a claim of ineffective assistance of counsel must

fail. Scheerer, 513 F.3d at 1253.

For those reasons, Ramirez’s argument about ineffective assistance of

counsel can’t succeed. Ramirez asked for a form of discretionary relief—the

cancellation of removal. As the Supreme Court recently said, “[t]he Attorney

General may choose to grant or withhold that relief in his discretion.” Pereida,

slip op. at 2; cf. Mejia Rodriguez, 178 F.3d at 1147 (“[S]uspension of deportation

is an act of grace committed to the unfettered discretion of the Attorney General.”

(quotation marks omitted)).2 Accordingly, Ramirez had no constitutionally

protected liberty interest at stake, and so he can’t show that his attorney’s error

2 Some of our past decisions refer to suspension of deportation rather than cancellation of removal. The change in terminology resulted from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009 (1996) (codified as amended in scattered sections of 8 U.S.C.). There is a substantive difference between suspension of deportation and cancellation of removal, but for present purposes, what really matters is that Congress committed decisions about both to the discretion of the Attorney General. See Arenas-Yepes v. Gonzales, 421 F.3d 111, 115 (2d Cir. 2005) (“IIRIRA also repealed the form of relief petitioner seeks here, ‘suspension of deportation,’ replacing it with a new form of discretionary relief, ‘cancellation of removal.’”); Ming-Hui Wu v. Holder, 567 F.3d 888, 892 (7th Cir. 2009) (“The IIRIRA also replaced ‘suspension of deportation’ with a new discretionary form of relief, ‘cancellation of removal,’ which was more difficult to obtain.”). 6 USCA11 Case: 20-12469 Date Filed: 03/22/2021 Page: 7 of 9

deprived him of liberty without due process of law. Scheerer, 513 F.3d at 1253;

Mejia Rodriguez, 178 F.3d at 1148. Because his motion to reopen his case relied

on his unsound claim of ineffective assistance of counsel, we have no reason to

second-guess the BIA’s denial of that motion.

Secondly and separately, if we assume for the sake of argument that Ramirez

had some right on which to predicate his ineffective-assistance-of-counsel claim,

it’s clear that the Board didn’t err in concluding that Ramirez had failed to show a

reasonable probability that his attorney’s mistakes substantially prejudiced him.

The gist of the documents that Ramirez hoped to submit was that Ramirez had

good moral character and that his children depended on him for financial support.

As to good moral character, the IJ found Ramirez had exactly that. So it’s hard to

imagine what additional documentation might’ve done for Ramirez there. And, as

to the documents that Ramirez says would have shown how his U.S. citizen

children depend on his financial support, the IJ heard testimony from Ramirez on

his concerns about returning to Mexico and how he didn’t think he’d be able to get

a job in construction there. The IJ also found Ramirez credible. Given what

Ramirez said about his family’s finances and his uncertain job prospects in

Mexico, the IJ must have known his removal would cause financial hardship to

Ramirez’s children. The IJ nonetheless concluded that Ramirez hadn’t shown the

kind of extreme hardship required to qualify for cancellation of removal, and the

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Board agreed with that determination. Ramirez hasn’t shown how additional

documentation on the point would have been reasonably probable to change that

conclusion. Indeed, in his motion to reopen and in his briefing before this Court,

Ramirez hasn’t explained in any detail what the additional documentation would

have shown or how it could have changed the outcome of the BIA’s decision.

Accordingly, Ramirez hasn’t given us sufficient reason to think that “that there is a

reasonable probability that but for the attorney’s error, the outcome of the

proceedings would have been different.” Dakane v. U.S. Att’y Gen., 399 F.3d

1269, 1274 (11th Cir. 2005).

Third and finally, Ramirez argues that the BIA failed to properly consider

salient factors in its decision-making process and that it failed to provide a

reasoned explanation for its action. We have held that the BIA must give reasoned

consideration to a movant’s claims. Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d

860, 874 (11th Cir. 2018). To determine whether the Board has done so, we ask

“whether the agency has considered the issues raised and announced its decision in

terms sufficient to enable a reviewing court to perceive that it has heard and

thought and not merely reacted.” Id. (quoting Jeune v. U.S. Att’y Gen., 810 F.3d

792, 803 (11th Cir. 2016)). “Yet, while the agency is required to consider all

evidence that a petitioner has submitted, it need not address specifically each claim

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the petitioner made or each piece of evidence the petitioner presented.” Jeune, 810

F.3d at 803.

The Board provided reasoned consideration and a sufficient explanation for

its decision here. Its order, though brief, leaves us with no doubt as to the basis of

its decision to deny the motion to reopen. The BIA concluded that Ramirez hadn’t

shown prejudice due to his former attorney’s blunders. “What is central to a

showing of reasoned consideration is that the reasoning of the Immigration Judge

and the BIA is logical and can be reviewed for error.” Bing Quan Lin, 881 F.3d at

874. The BIA’s decision here is neither illogical nor incapable of review. It

recognized the basis for Ramirez’s motion and acknowledged that he had satisfied

the procedural requirements necessary for the Board to consider his motion. And

then the Board explained its reason for rejecting the motion—a failure to

demonstrate prejudice—“which was sufficient to address [Ramirez’s] central

claim.” Id. at 875. To the extent Ramirez asks us to impose additional show-your-

work requirements on the BIA, we decline to do so. More might have been said,

but no more needed to be said.

PETITION DENIED.