18-58 Joshue v. Barr BIA Straus, IJ A023 310 562
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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of September, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 PETER W. HALL, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 JENNIFA JOSHUE, AKA JENNIFER 14 JOSHUA, 15 Petitioner, 16 17 v. 18-58 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Paul B. Grotas, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Stephen J. Flynn, 29 Assistant Director; James A. 30 Hurley, Trial Attorney, Office of 31 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Jennifa Joshue, a native and citizen of St.
8 Lucia, seeks review of a January 4, 2018, decision of the BIA
9 denying her second motion to reopen. In re Jennifa Joshue,
10 No. A 023 310 562 (B.I.A. Jan. 4, 2018). We assume the
11 parties’ familiarity with the underlying facts and procedural
12 history in this case.
13 Because Joshue has been convicted of an aggravated
14 felony, our review is limited to colorable constitutional
15 claims and questions of law. See 8 U.S.C. 1252(a)(2)(C),
16 (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–41 (2d Cir.
17 2008). Although Joshue’s arguments implicate constitutional
18 issues and questions of law, none of her challenges to the
19 time and number limitation on her motion have merit. And we
20 lack jurisdiction to review the BIA’s decision not to reopen
21 sua sponte.
2 1 An alien seeking to reopen proceedings may file only one
2 motion to reopen no later than 90 days after the final
3 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
4 8 C.F.R. § 1003.2(c)(2). There is no dispute that Joshue’s
5 2017 motion was her second motion to reopen and was untimely
6 filed 15 years after her removal order. None of the statutory
7 and regulatory exceptions to the time and number bars apply
8 here. See 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R.
9 § 1003.2(c)(3)(i)–(iv).
10 Although ineffective assistance of counsel may warrant
11 an equitable exception to the time and number limitations,
12 Joshue failed to state such a claim. See Rashid v. Mukasey,
13 533 F.3d 127, 130–31 (2d Cir. 2008). Ineffective assistance
14 may excuse the time and number limitations on a motion to
15 reopen if a movant shows that “counsel’s performance was so
16 ineffective [that it] impinged upon the fundamental fairness
17 of the hearing in violation of the fifth amendment of the due
18 process clause.” Id. at 130 (internal quotation marks and
19 citation omitted). To do so, Joshue was required to
20 demonstrate “that competent counsel would have acted
21 otherwise, and . . . that [s]he was prejudiced by h[er] 3 1 counsel’s performance.” Id. at 131. To show prejudice,
2 Joshue had to demonstrate that “the outcome of h[er] removal
3 proceedings would have been . . . different” absent the
4 alleged deficiencies. Debeatham v. Holder, 602 F.3d 481, 486
5 (2d Cir. 2010).
6 While Joshue argues that her counsel could have presented
7 more arguments regarding her naturalization application (that
8 had been denied prior to the hearing) and the aggravated
9 felony ground of removal and that counsel could have pursued
10 other forms of relief, she does not argue or establish any
11 error in her original removal order or identify any relief
12 that she could have applied for. Thus, she did not
13 demonstrate prejudice. Id.; see also Rabiu v. INS, 41 F.3d
14 879, 882 (2d Cir. 1994) (To demonstrate prejudice, the
15 petitioner “must make a prima facie showing that he would
16 have been eligible for the relief and that he could have made
17 a strong showing in support of his application.”). Because
18 prejudice is a requirement, we do not reach the BIA’s other
19 grounds for denying reopening based on ineffective
4 1 assistance. 1 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
2 (“As a general rule courts and agencies are not required to
3 make findings on issues the decision of which is unnecessary
4 to the results they reach.”).
5 While the BIA has regulatory authority to reopen
6 proceedings sua sponte despite the time and number bars, 8
7 C.F.R. § 1003.2(a), we lack jurisdiction to review this
8 “entirely discretionary” determination, see Ali v. Gonzales,
9 448 F.3d 515, 518 (2d Cir. 2006). There is one exception:
10 “where the [BIA] may have declined to exercise its sua sponte
11 authority because it misperceived the legal background and
12 thought, incorrectly, that a reopening would necessarily
13 fail, remand to the [BIA] for reconsideration in view of the
14 correct law is appropriate.” Mahmood v. Holder, 570 F.3d
15 466, 469 (2d Cir. 2009). However, this exception does not
16 apply here because the BIA did not state that reopening would
17 necessarily fail or misperceive the law.
1Although the BIA did not discuss equitable tolling, it made dispositive findings that Joshue did not establish the prejudice required to state an ineffective assistance claim which is a prerequisite to equitable tolling. See Rashid, 533 F.3d at 130–31. 5 1 First, as discussed above, Joshue did not state an
2 ineffective assistance claim. Second, the BIA acknowledged
3 that Joshue identified a change in the law as set out in Husic
4 v. Holder, 776 F.3d 59 (2d Cir. 2015), but declined to reopen
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18-58 Joshue v. Barr BIA Straus, IJ A023 310 562
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 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of September, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 PETER W. HALL, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 JENNIFA JOSHUE, AKA JENNIFER 14 JOSHUA, 15 Petitioner, 16 17 v. 18-58 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Paul B. Grotas, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Stephen J. Flynn, 29 Assistant Director; James A. 30 Hurley, Trial Attorney, Office of 31 Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Jennifa Joshue, a native and citizen of St.
8 Lucia, seeks review of a January 4, 2018, decision of the BIA
9 denying her second motion to reopen. In re Jennifa Joshue,
10 No. A 023 310 562 (B.I.A. Jan. 4, 2018). We assume the
11 parties’ familiarity with the underlying facts and procedural
12 history in this case.
13 Because Joshue has been convicted of an aggravated
14 felony, our review is limited to colorable constitutional
15 claims and questions of law. See 8 U.S.C. 1252(a)(2)(C),
16 (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–41 (2d Cir.
17 2008). Although Joshue’s arguments implicate constitutional
18 issues and questions of law, none of her challenges to the
19 time and number limitation on her motion have merit. And we
20 lack jurisdiction to review the BIA’s decision not to reopen
21 sua sponte.
2 1 An alien seeking to reopen proceedings may file only one
2 motion to reopen no later than 90 days after the final
3 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
4 8 C.F.R. § 1003.2(c)(2). There is no dispute that Joshue’s
5 2017 motion was her second motion to reopen and was untimely
6 filed 15 years after her removal order. None of the statutory
7 and regulatory exceptions to the time and number bars apply
8 here. See 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R.
9 § 1003.2(c)(3)(i)–(iv).
10 Although ineffective assistance of counsel may warrant
11 an equitable exception to the time and number limitations,
12 Joshue failed to state such a claim. See Rashid v. Mukasey,
13 533 F.3d 127, 130–31 (2d Cir. 2008). Ineffective assistance
14 may excuse the time and number limitations on a motion to
15 reopen if a movant shows that “counsel’s performance was so
16 ineffective [that it] impinged upon the fundamental fairness
17 of the hearing in violation of the fifth amendment of the due
18 process clause.” Id. at 130 (internal quotation marks and
19 citation omitted). To do so, Joshue was required to
20 demonstrate “that competent counsel would have acted
21 otherwise, and . . . that [s]he was prejudiced by h[er] 3 1 counsel’s performance.” Id. at 131. To show prejudice,
2 Joshue had to demonstrate that “the outcome of h[er] removal
3 proceedings would have been . . . different” absent the
4 alleged deficiencies. Debeatham v. Holder, 602 F.3d 481, 486
5 (2d Cir. 2010).
6 While Joshue argues that her counsel could have presented
7 more arguments regarding her naturalization application (that
8 had been denied prior to the hearing) and the aggravated
9 felony ground of removal and that counsel could have pursued
10 other forms of relief, she does not argue or establish any
11 error in her original removal order or identify any relief
12 that she could have applied for. Thus, she did not
13 demonstrate prejudice. Id.; see also Rabiu v. INS, 41 F.3d
14 879, 882 (2d Cir. 1994) (To demonstrate prejudice, the
15 petitioner “must make a prima facie showing that he would
16 have been eligible for the relief and that he could have made
17 a strong showing in support of his application.”). Because
18 prejudice is a requirement, we do not reach the BIA’s other
19 grounds for denying reopening based on ineffective
4 1 assistance. 1 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
2 (“As a general rule courts and agencies are not required to
3 make findings on issues the decision of which is unnecessary
4 to the results they reach.”).
5 While the BIA has regulatory authority to reopen
6 proceedings sua sponte despite the time and number bars, 8
7 C.F.R. § 1003.2(a), we lack jurisdiction to review this
8 “entirely discretionary” determination, see Ali v. Gonzales,
9 448 F.3d 515, 518 (2d Cir. 2006). There is one exception:
10 “where the [BIA] may have declined to exercise its sua sponte
11 authority because it misperceived the legal background and
12 thought, incorrectly, that a reopening would necessarily
13 fail, remand to the [BIA] for reconsideration in view of the
14 correct law is appropriate.” Mahmood v. Holder, 570 F.3d
15 466, 469 (2d Cir. 2009). However, this exception does not
16 apply here because the BIA did not state that reopening would
17 necessarily fail or misperceive the law.
1Although the BIA did not discuss equitable tolling, it made dispositive findings that Joshue did not establish the prejudice required to state an ineffective assistance claim which is a prerequisite to equitable tolling. See Rashid, 533 F.3d at 130–31. 5 1 First, as discussed above, Joshue did not state an
2 ineffective assistance claim. Second, the BIA acknowledged
3 that Joshue identified a change in the law as set out in Husic
4 v. Holder, 776 F.3d 59 (2d Cir. 2015), but declined to reopen
5 sua sponte on that basis because Joshue did not otherwise
6 show that she had an approved visa petition as required to
7 adjust status or that she would merit a waiver or adjustment
8 as a matter of discretion. This was not a misperception of
9 the law. See Seepersad v. Sessions, 829 F.3d 121, 124–26 (2d
10 Cir. 2018) (upholding requirement that lawful permanent
11 resident apply to adjust status in connection with a waiver
12 under 8 U.S.C. § 1182(h)); see also 8 U.S.C. § 1255(a) (to be
13 eligible to adjust status, an applicant must be the
14 beneficiary of a current visa petition); INS v. Abudu, 485
15 U.S. 94, 104–05 (1988) (holding that BIA “may leap . . . over
16 the two threshold concerns (prima facie case and new
17 evidence/reasonable explanation), and simply [deny reopening
18 when] the movant would not be entitled to the discretionary
19 grant of relief”). Although Joshue alleges that her visa
20 petition has since been approved, it was not at the time of
21 the BIA’s decision. Thus, the BIA did not err in finding 6 1 that she was not prima facie eligible for a waiver when it
2 denied reopening.
3 Moreover, the BIA reasonably observed that the waiver is
4 discretionary and was unlikely to be granted given the
5 severity of Joshue’s conviction. Despite Joshue’s argument
6 that her conviction should not preclude a favorable exercise
7 of discretion because the waiver is designed for criminal
8 aliens, the BIA did not misperceive the law because it did
9 not conclude that a waiver was unavailable, but rather, that
10 Joshue was unlikely to merit one as a matter of discretion.
11 We lack jurisdiction to review further the BIA’s decision not
12 to reopen sua sponte. See Ali, 448 F.3d at 518.
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19