Monge v. Garland

Opinion

20-2253 Monge v. Garland BIA

A070 985 529

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 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 16th day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 MICHAEL H. PARK, 9 WILLIAM J. NARDINI, 10 EUNICE C. LEE, 11 Circuit Judges. 12 _____________________________________ 13 14 HUMBERTO MONGE, AKA, 15 SEGUNDO HUMBERTO MONGE 16 SIRANAULA, AKA, CARLOS MONGE, 17 Petitioner, 18 19 v. 20-2253 20 NAC 21 MERRICK B. GARLAND, UNITED 22 STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________

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1 FOR PETITIONER: H. Raymond Fasano, Esq., Youman, 2 Madeo & Fasano, LLP, New York, NY. 3 4 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 5 Attorney General; Sabatino F. Leo, 6 Assistant Director; Greg D. Mack, 7 Senior Litigation Counsel, Office 8 of Immigration Litigation, United 9 States Department of Justice, 10 Washington, DC.

11 UPON DUE CONSIDERATION of this petition for review of a 12 Board of Immigration Appeals (“BIA”) decision, it is hereby 13 ORDERED, ADJUDGED, AND DECREED that the petition for review 14 is DENIED. 15 Petitioner Humberto Monge, a native and citizen of 16 Ecuador, seeks review of a June 16, 2020 decision of the BIA 17 denying his March 2, 2020 motion to reopen his removal 18 proceedings to pursue cancellation of removal. In re 19 Humberto Monge, No. A070 985 529 (B.I.A. June 16, 2020). We 20 assume the parties’ familiarity with the underlying facts and 21 procedural history. 22 Monge sought to reopen his removal proceedings on the 23 ground that his former counsel rendered ineffective 24 assistance. Specifically, he asserted that his former 25 counsel should have argued that his Connecticut larceny 26 conviction was not a crime involving moral turpitude (“CIMT”)

1 and thus did not render him ineligible for cancellation of 2 removal. We review the denial of a motion to reopen for 3 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 4 138, 168–69 (2d Cir. 2008). “An abuse will be found only in 5 those limited circumstances where the BIA’s decision 6 (1) provides no rational explanation, (2) inexplicably 7 departs from established policies, (3) is devoid of any 8 reasoning, or (4) contains only summary or conclusory 9 statements.” Song Jin Wu v. INS, 436 F.3d 157, 161 (2d Cir. 10 2006) (citation omitted). “[W]e review de novo 11 constitutional claims and questions of law.” Luna v. Holder, 12 637 F.3d 85, 102 (2d Cir. 2011). 13 To reopen removal proceedings based on ineffective 14 assistance of counsel, a movant must demonstrate prejudice. 15 Scarlett v. Barr, 957 F.3d 316, 326 (2d Cir. 2020). Prejudice 16 requires “a prima facie showing that, but for counsel’s 17 ineffectiveness, [the movant] would have been eligible 18 for . . . relief, and could have made a strong showing in 19 support of his application.” Id. (citation and internal 20 quotation marks omitted). Thus, Monge had the burden to 21 establish his prima facie eligibility for cancellation of

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1 removal. In relevant part, an applicant for cancellation has 2 the burden to establish both that he has no disqualifying 3 convictions, such as a conviction for a CIMT, and “that 4 removal would result in exceptional and extremely unusual 5 hardship to [his] spouse, parent, or child, who is a citizen 6 of the United States or an alien lawfully admitted for 7 permanent residence.” 1 8 U.S.C. § 1229b(b)(1)(D). As the 8 BIA concluded, Monge did not establish prejudice because he 9 challenged only the CIMT finding and did not address the fact 10 that his daughter had aged out as a qualifying relative. See 11 id. § 1229b(b); Scarlett, 957 F.3d at 326-27. 12 Monge argues here that his daughter’s age should have 13 been tolled because his counsel should have challenged the 14 CIMT finding before his daughter aged out as a qualifying 15 relative. We do not reach the tolling argument because Monge 16 did not directly raise it in his motion to reopen, and the 17 argument is neither subsidiary to nor an extension of 18 arguments that he did make in his motion to reopen. See

1 A child is “an unmarried person under twenty-one years of age.” Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 830 (B.I.A. 2012) (quoting 8 U.S.C. § 1101(b)(1)). A child’s age is calculated “at the time the Immigration Judge adjudicated the application on the merits.” Id. at 831.

1 Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (“To 2 preserve an issue for judicial review, the petitioner must 3 first raise it with specificity before the BIA” or “the 4 issue . . . must be either a specific, subsidiary legal 5 argument[] or an extension of [an] argument . . . raised 6 directly before the BIA.” (cleaned up)). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court