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,

, 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

(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

, 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.”

(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.”

. 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,

, 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,

(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,

(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

(a), we lack jurisdiction to review this

8 “entirely discretionary” determination, see Ali v. Gonzales,

9

(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,

(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,

(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,

, 124–26 (2d

10 Cir. 2018) (upholding requirement that lawful permanent

11 resident apply to adjust status in connection with a waiver

12 under

(h)); see also

(a) (to be

13 eligible to adjust status, an applicant must be the

14 beneficiary of a current visa petition); INS v. Abudu, 485

, 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,

.

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

7