Sorto-Portales v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2024
• Docket: 23-3302
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICOLE ALE SORTO-PORTALES, No. 23-3302 Agency No. Petitioner, A212-974-839 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 21, 2024** Phoenix, Arizona

Before: TASHIMA, M. SMITH, and BADE, Circuit Judges.

Petitioner Nicole Ale Sorto-Portales (Sorto-Portales), a native and citizen of

Honduras, seeks review of the Board of Immigration Appeals’ (BIA) denial of her

motion to reopen removal proceedings. We review the BIA’s denial of a motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). reopen for abuse of discretion, Greenwood v. Garland, 36 F.4th 1232, 1235 (9th

Cir. 2022) (citing Nababan v. Garland, 18 F.4th 1090, 1094 (9th Cir. 2021)), and

review questions of law de novo, Mohammed v. Gonzales, 400 F.3d 785, 791–92

(9th Cir. 2005) (citing Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004)). We

deny the petition.

1. Sorto-Portales sought reopening based on alleged ineffective

assistance of counsel by her prior attorney, who did not file a brief in support of

her appeal of the IJ’s decision denying her applications for asylum, statutory

withholding of removal, and relief under the Convention Against Torture (CAT),

despite indicating an intent to do so on the notice of appeal. To demonstrate

ineffective assistance of counsel in a removal proceeding, a petitioner must show

that “counsel failed to perform with sufficient competence” and that the petitioner

was “prejudiced by counsel’s performance.” Mohammed, 400 F.3d at 793 (citing

Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)). The BIA

concluded that, assuming her prior attorney provided ineffective assistance, Sorto-

Portales failed to show prejudice.

Counsel’s failure to file an appeal brief gives rise to a presumption of

prejudice if the failure causes the BIA to summarily dismiss the appeal, thereby

depriving the petitioner of “any meaningful review of the IJ’s decision.” Singh v.

Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004). Here, the BIA dismissed Sorto-

2 23-3302 Portales’s appeal of the IJ’s removal decision on the merits, after considering the

arguments raised in her notice of appeal. Sorto-Portales argues that prejudice

should be presumed because, although the notice of appeal “captured the main

errors” in the IJ’s decision, a brief could have gone “further into the evidence” and

asserted other arguments. “Prejudice is ordinarily presumed in immigration

proceedings when counsel’s error ‘deprives the alien of the appellate proceeding

entirely.’” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (quoting

Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000)). We need

not determine whether prejudice is presumed because, even if it were, the

presumption is rebutted.

The presumption of prejudice is rebutted if the petitioner fails to show

plausible grounds for relief. Siong v. INS, 376 F.3d 1030, 1038 (9th Cir. 2004).

The BIA concluded that, if the presumption of prejudice applied, it was rebutted

because Sorto-Portales did not show a plausible ground for relief. It is undisputed

that, in her motion to reopen, Sorto-Portales did not address the merits of the BIA’s

decision dismissing her appeal, the IJ’s removal decision, or her underlying

applications for asylum, withholding of removal, or relief under CAT; she also did

not explain how the lack of a brief prejudiced her appeal. Thus, the BIA did not

abuse its discretion by concluding that she failed to show plausible grounds for

relief. See also Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (petitioners

3 23-3302 failed to demonstrate prejudice caused by ineffective assistance of counsel because

they failed to explain what evidence counsel improperly failed to introduce);

Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986) (same).

If prejudice is not presumed, to succeed on her ineffective assistance of

counsel claim, Sorto-Portales must show that “[c]ounsel’s deficiencies . . . could

have affected the outcome of the proceedings.” Singh v. Holder, 658 F.3d 879,

887 (9th Cir. 2011) (citing Mohammed, 400 F.3d at 793). For the same reasons

that Sorto-Portales failed to show plausible grounds for relief, she also did not

demonstrate that her prior attorney’s error may have affected the outcome of the

proceedings. See also Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th

Cir. 2015).

In sum, the BIA did not abuse its discretion by concluding that Sorto-

Portales did not show that her prior attorney’s failure to file a brief prejudiced her

appeal. We therefore deny the petition for review as to the motion to reopen.

2. Sorto-Portales also asks for de novo review of the BIA’s and IJ’s

removal decisions. She did not petition for review of the BIA’s decision

dismissing her appeal. Because her petition is limited to the denial of her motion

to reopen, we do not review the merits of her appeal or her underlying applications

for asylum, withholding of removal, and relief under CAT. Abassi v. INS, 305

4 23-3302 F.3d 1028, 1030 (9th Cir. 2002); see also 8 U.S.C. § 1252(b)(1) (deadline for

petition for review of order of removability).

PETITION FOR REVIEW DENIED.

5 23-3302