20-415(L) Dobrik v. Garland BIA A205 500 133

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of May, two thousand twenty-two.

PRESENT: DENNIS JACOBS, ROBERT D. SACK, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

PAVOL DOBRIK, Petitioner,

20-415(L), v. 20-2580(Con) NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Kevin L. Dixler, Chicago, IL.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Leslie McKay, Acting Assistant Director; Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DENIED.

Petitioner Pavol Dobrik, a native and citizen of

Slovakia, seeks review of (1) a January 3, 2020 decision of

the BIA, denying a motion to reopen, and (2) a July 20, 2020

decision, denying a subsequent motion to reconsider and

reopen. In re Pavol Dobrik, No. A205 500 133 (B.I.A. Jan. 3

& July 20, 2020). We assume the parties’ familiarity with

the underlying facts and procedural history.

Dobrik argues that the BIA erred in denying his motions

to reopen and reconsider his claim for cancellation of removal

under 8 U.S.C. § 1229b(b)(1) because he established that his

former counsel was ineffective by failing to present evidence

on the hardship Dobrik’s removal would cause his U.S. citizen

children. Our jurisdiction is limited to constitutional

claims and questions of law when we review the denial of

motions to reopen and reconsider related to the issue of

hardship required for cancellation of removal. See

(a)(2)(B), (D); see also Barco-Sandoval v. Gonzales,

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, 38–40 (2d Cir. 2008) (reaffirming that

jurisdiction to review a hardship determination for

cancellation is limited by Section 1252(a)(2)(B)); Sepulveda

v. Gonzales,

(2d Cir. 2005) (holding that the

jurisdictional limitation for discretionary denials of relief

applies equally to denials of motions to reopen or reconsider

that relief).

We have jurisdiction to consider Dobrik’s ineffective

assistance of counsel claim because it is a constitutional

claim. See Omar v. Mukasey,

(2d Cir. 2008)

(“We are not barred from exercising jurisdiction over an

ineffective assistance of counsel claim . . . merely because

in determining whether the petitioner was prejudiced by

counsel’s errors we would have to consider whether the

agency’s underlying discretionary determination might have

been different had no errors occurred.”). When examining

“denied motions to reopen, we review de novo constitutional

claims and questions of law.” Luna v. Holder,

,

102–03 (2d Cir. 2011).

To demonstrate ineffective assistance, a movant must show

both “that competent counsel would have acted otherwise,” and

“that he was prejudiced by counsel’s performance.” Rabiu v. 3 INS,

, 882–83 (2d Cir. 1994) (quoting Esposito v.

INS,

(2d Cir. 1993)). Prejudice requires

that a movant “make a prima facie showing that he would have

been eligible for the relief and that he could have made a

strong showing in support of his application.” Rabiu,

; see also Scarlett v. Barr,

(2d

Cir. 2020).

Here, in denying both the motion to reopen and the motion

to reconsider, the BIA concluded that Dobrik had not shown

the requisite prejudice because the evidence he argued his

counsel should have submitted would not have changed the

ultimate outcome—namely, that Dobrik failed to establish that

his removal would cause his U.S. citizen children the

“exceptional and extremely unusual hardship” required for

cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(D).

Reviewing the record as whole, we agree with the BIA’s

determinations that Dobrik failed to demonstrate that the

outcome would have changed had his counsel submitted the

additional evidence Dobrik provided and, accordingly, we

conclude that Dobrik has not shown that he was prejudiced by

the alleged ineffective assistance of counsel. Insofar as

Dobrik argues that we should apply a less stringent standard 4 for prejudice, see Petitioner’s Br. at 20–21, 28–29, or that

he deserves another hearing “regardless of the outcome,” see

id. at 27, we are bound by the precedential decisions

establishing this prima facie standard for prejudice and thus

decline Dobrik’s request that we apply a less stringent

standard, see Dale v. Barr,

, 142 (2d Cir.

2020)(“It is a longstanding rule of our Circuit that a three-

judge panel is bound by a prior panel's decision until it is

overruled either by this Court sitting en banc or by the

Supreme Court.” (internal quotation marks omitted)).

For the foregoing reasons, the petitions for review are

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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