Saenz v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2024
• Docket: 23-60416
• Status: Unpublished

Opinion

Case: 23-60416 Document: 42-1 Page: 1 Date Filed: 05/01/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

FILED No. 23-60416 May 1, 2024 Summary Calendar Lyle W. Cayce ____________ Clerk Ruth Saenz,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A026 802 336 ______________________________

Before Barksdale, Engelhardt, and Wilson, Circuit Judges. Per Curiam: * Ruth Saenz, a native and citizen of Mexico, petitions our court for review of the Board of Immigration Appeals’ (BIA) denying her motion to reopen her immigration proceedings. Saenz’ notice to appear did not include a date or time for her initial hearing. In her motion to reopen, she contends the defective notice deprived

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-60416 Document: 42-1 Page: 2 Date Filed: 05/01/2024

the immigration court of jurisdiction under Niz-Chavez v. Garland, 593 U.S. 155 (2021) and Pereira v. Sessions, 585 U.S. 198 (2018). She also maintains her counsel was ineffective for failing to challenge the court’s jurisdiction. Review of the BIA’s denying a motion to reopen is “under a highly deferential abuse-of-discretion standard”. Ovalles v. Rosen, 984 F.3d 1120, 1123 (5th Cir. 2021) (citation omitted). A motion to reopen may be denied if the movant does not make a prima-facie showing of eligibility for the relief sought. E.g., Parada-Orellana v. Garland, 21 F.4th 887, 893 (5th Cir. 2022). To raise a colorable claim of ineffective assistance of counsel (IAC), Saenz must show her counsel’s substandard performance prejudiced her. See, e.g., Diaz v. Sessions, 894 F.3d 222, 228 (5th Cir. 2018) (outlining ineffective- assistance standard). Prejudice is established by showing “there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”. Id. (citation omitted). As Saenz acknowledges, her contention that the defective notice failed to confer jurisdiction on the immigration court is foreclosed by precedent. E.g., Castillo-Gutierrez v. Garland, 43 F.4th 477, 480 (5th Cir. 2022) (explaining precedent forecloses contention that immigration judge did not acquire jurisdiction on account of defective notice), overruled on other grounds by Wilkinson v. Garland, 144 S. Ct. 780, 787–88, 787 n.2 (2024); Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021) (same). She raises the issue to preserve it for possible further review. And, because the above contention is meritless, the BIA correctly concluded Saenz could not establish prejudice on her IAC claim. DENIED.