Luciano Anacleto Reyes Reyes v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 2, 2020
• Docket: 20-10570
• Status: Unpublished

Opinion

Case: 20-10570 Date Filed: 10/02/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10570 Non-Argument Calendar ________________________

Agency No. A205-033-507

LUCIANO ANACLETO REYES REYES, a.k.a. Rodolfo Garcia-Garcia,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(October 2, 2020)

Before WILLIAM PRYOR, Chief Judge, JORDAN and BRANCH, Circuit Judges.

PER CURIAM: Case: 20-10570 Date Filed: 10/02/2020 Page: 2 of 4

Luciano Anacleto Reyes Reyes, a native and citizen of Guatemala, petitions

for review of a decision that affirmed his order of removal following the denial of

his application for cancellation of removal. 8 U.S.C. § 1229b(b)(1). Reyes

challenges the denial of his fourth request for a continuance. He also challenges the

ruling of the Board of Immigration Appeals that he was not deprived of due

process by being required to proceed with substitute counsel instead of his retained

counsel. We deny Reyes’s petition.

We apply two standards of review to Reyes’s petition. We review the denial

of a motion for a continuance for abuse of discretion, Chacku v. U.S. Att’y Gen.,

555 F.3d 1281, 1285 (11th Cir. 2008), under which our “review is limited to

determining whether . . . [there has been an exercise of administrative] discretion

in an arbitrary or capricious manner,” Zhang v. U.S. Att’y Gen., 572 F.3d 1316,

1319 (11th Cir. 2009). We review de novo whether an alien is deprived of due

process by being required to proceed without his counsel of choice. See Lapaix v.

U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).

We cannot say that it was arbitrary and capricious to deny Reyes’s fourth

motion to continue. Reyes succeeded in postponing his removal proceedings for

several years, after which he offered no “good cause,” see 8 C.F.R. § 1003.29, to

justify another delay. After the Department of Homeland Security charged Reyes

for entering the United States illegally in 2012, see 8 U.S.C. § 1182(a)(6)(A)(1),

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his retained counsel Lorne Kelman and his associates had Reyes’s removal

proceedings continued to May 2016 to complete his sentence of probation for

driving while under the influence and later to April 2018 for his wife to litigate her

immigration proceeding. At Kelman’s request, the immigration judge scheduled

Reyes’s removal hearing for April 11, 2018, so Kelman could observe Passover

outside the United States. Despite the immigration judge’s warning that Reyes

would receive no further continuances absent “truly extraordinary circumstances,”

Kelman sought, without success, to continue the removal hearing until the summer

of 2018 on the ground he had a case set for trial on April 13, 2018. On April 11,

2018, substitute counsel appeared with Reyes solely to request another

continuance. The immigration judge did not abuse his discretion by refusing to

delay further the removal hearing when Kelman was available to represent Reyes.

We cannot say that the Board erred in ruling that Reyes was not denied due

process by being required to proceed without Kelman. Reyes had a right to be

represented by the counsel of his choice, but we cannot disturb the decision of the

Board unless Reyes proves that he was substantially prejudiced by counsel’s

absence. See Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007). To

prove substantial prejudice, Reyes must establish that, but for the absence of his

counsel of choice, the outcome of his removal proceeding would have been

different. Lapaix, 605 F.3d at 1143. Reyes argues that, without Kelmar present, he

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“could not testify and explain whether . . . his child [continued to] suffer[]” from a

developmental delay first “experienced in 2010.” But Reyes could have asked to

testify even though his substitute counsel declined to present evidence. And Reyes

does not argue that his child’s condition was long-lasting or that his child would

suffer an exceptional and unusual hardship if he was removed to Guatemala.

Because Reyes fails to establish that Kelman’s presence might have changed the

immigration judge’s decision, Reyes cannot prove that the decision to proceed with

substitute counsel violated his right to due process.

We DENY Reyes’s petition for review.