22-6119 Guerra Rojas v. Garland BIA A097 505 682

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 25th day of October, two thousand twenty-four.

PRESENT: JON O. NEWMAN, DENNIS JACOBS, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

EDGAR A GUERRA ROJAS, Petitioner,

v. 22-6119 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Raymond Lo, Jersey City, NJ. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Nancy E. Friedman, Senior Litigation Counsel; Virginia Lum, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Edgar A. Guerra Rojas seeks review of a February 14, 2022

decision of the BIA denying his motion to reopen his removal proceedings. In re

Edgar A. Guerra Rojas, No. A097 505 682 (B.I.A. Feb. 14, 2022). We assume the

parties’ familiarity with the underlying facts and procedural history.

Guerra Rojas moved to reopen based on ineffective assistance of counsel,

asserting that his former counsel failed to obtain and submit his parents’ complete

financial and medical records in support of his application for cancellation of

removal and that counsel’s failures resulted in the denial of cancellation; he also

asserted that new evidence of his mother’s mental health issues demonstrated that

his removal would cause her exceptional and extremely unusual hardship. We

review the BIA’s denial of a motion to reopen for abuse of discretion, Jian Hui Shao

v. Mukasey,

, 168–69 (2d Cir. 2008), and we review de novo 2 constitutional claims and questions of law, Luna v. Holder,

(2d Cir.

2011). But we lack jurisdiction to review factual findings underlying a denial of

cancellation of removal, including in the context of a motion to reopen. See

Wilkinson v. Garland,

(2024) (“[A] court is . . . without jurisdiction

to review a factual question raised in an application for [cancellation of removal,]

. . . includ[ing] the IJ’s underlying factual determination that [petitioner] was

credible, or the finding that [a qualifying relative] had a serious medical

condition.”); Sepulveda v. Gonzales,

(2d Cir. 2005) (“[A] jurisdictional

provision that applies to a final order of removal necessarily also applies to related

motions to reconsider and reopen.”).

A “motion to reopen shall state the new facts that will be proven at a hearing

to be held if the motion is granted, and shall be supported by affidavits or other

evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). The agency may deny a motion

to reopen if the movant does not submit “previously unavailable, material

evidence” or fails to “establish[] a prima facie case for the underlying substantive

relief sought.” INS v. Abudu,

, 104–05 (1988); see also

(c)(1) (“A motion to reopen proceedings shall not be granted unless it

appears to the Board that evidence sought to be offered is material and was not

3 available and could not have been discovered or presented at the former

hearing.”).

An applicant for cancellation of removal, who, like Guerra Rojas, is not a

permanent resident, may have his removal cancelled if, in relevant part, he

“establishes that removal would result in exceptional and extremely unusual

hardship to [his] spouse, parent, or child, who is a citizen of the United States or

an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D).

The hardship to a qualifying relative “must be substantially beyond the ordinary

hardship that would be expected when a close family member leaves this

country.” In re Monreal-Aguinaga,

(B.I.A. 2001) (internal

quotation marks omitted).

The BIA did not err in denying Guerra Rojas’s motion to reopen because he

did not submit previously unavailable evidence in support of his ineffective

assistance of counsel claim or show that he was prejudiced by former counsel’s

purportedly ineffective assistance. A movant raising an ineffective assistance

claim must first comply with the procedural requirements laid out in Matter of

Lozada,

(B.I.A. 1988). See Jian Yun Zheng v. U.S. Dep’t of Just.,

, 46–47 (2d Cir. 2005) (providing that failure to comply with Lozada will

4 result in forfeiture of an ineffective assistance of counsel claim). Further, to obtain

reopening based on ineffective assistance of counsel, a movant must show that

counsel’s actions were unreasonable and caused prejudice, which requires a

“prima facie showing that, but for counsel’s ineffectiveness, [the movant] would

have been eligible for . . . relief and could have made a strong showing in support

of his application.” Scarlett v. Barr,

(2d Cir. 2020) (internal

quotation marks and citation omitted); see also Paucar v. Garland,

(2d

Cir. 2023) (requiring movant to “show that, but for counsel’s unprofessional errors,

there is a reasonable probability the IJ would have granted the relief . . . requested”

(internal quotation marks and citation omitted)).

As the BIA concluded, Guerra Rojas’s evidence of compliance with the

Lozada requirements submitted with his June 2021 motion was previously

available because he could have complied with those requirements when he first

raised his ineffective assistance of counsel claim on appeal to the BIA in March

2020, and he did not explain his failure to do so. See Abudu,

.

Alternatively, the BIA did not err in finding Guerra Rojas failed to show that he

was prejudiced by former counsel’s failure to obtain and submit his parents’

financial and medical records. See Scarlett,

. Guerra Rojas did not

5 include financial records with the motion to reopen, the medical records he

submitted provided similar information to records previously before the BIA, and

any new medical information did not counter the IJ’s findings that his mother’s

medical conditions were not severe and that she could continue to receive

treatment even after Guerra Rojas’s removal. See

Insofar as Guerra Rojas submitted a new, previously unavailable

psychological assessment for his mother, the BIA concluded that the assessment

did not show his prima facie eligibility for cancellation of removal. See Abudu, 485

U.S. at 104–05. We lack jurisdiction to review the BIA’s factual finding that the

assessment was of questionable veracity, see Wilkinson,

, and the BIA

did not err in alternatively concluding that the assessment would not change the

outcome because, other than the hearsay in the assessment, Guerra Rojas did not

submit affidavits from himself or his parents regarding his mother’s ability to

receive treatment for the conditions discussed in the assessment should he be

removed. See Abudu, 485 U.S. at 104–05; cf. Matter of J-J-G-,

(B.I.A. 2020) (“[E]xceptional and extremely unusual hardship . . . is based on a

cumulative consideration of all hardship factors, but to the extent that a claim is

based on the health of a qualifying relative, an applicant needs to establish that the

6 relative has a serious medical condition and, if he or she is accompanying the

applicant to the country of removal, that adequate medical care for the claimed

condition is not reasonably available in that country.”).

For the foregoing reasons, the petition for review is 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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