                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      March 17, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                       Clerk of Court
                             FOR THE TENTH CIRCUIT


HECTOR AGUSTIN SANTOS,
GLORIA CORINA MAZARIEGOS
ALVARADO, JOSELIN JESENIA
SANTOS MAZARIEGOS,

              Petitioners,                                  No. 07-9558
                                                        (Petition for Review)
v.

ERIC H. HOLDER, JR., *
United States Attorney General,

              Respondent.


                             ORDER AND JUDGMENT **


Before LUCERO and EBEL, Circuit Judges, and FRIZZELL, *** District Judge.



      Petitioners Hector Agustin Santos, Gloria Corina Mazariegos Alvarado, and

Joselin Jesenia Santos Mazariegos seek review of the decision of the Board of

Immigration Appeals (“BIA”) denying their motion to reopen removal proceedings.

      *
        Eric H. Holder, Jr. is substituted for Michael B. Mukasey, pursuant to Fed. R.
App. P. 43(c)(2).
      **
         This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. 32.1 and 10th Cir. R. 32.1.
      ***
         The Honorable Gregory K. Frizzell, United States District Judge for the
Northern District of Oklahoma, sitting by designation.
We have jurisdiction, and we deny the petition for review.

                                     I. Background

       Hector Agustin Santos and Gloria Corina Mazariegos Alvarado (“the

Santoses”) are natives and citizens of Guatemala. Hector Santos entered the

United States without inspection in 1988; in 1992, he left the country, returned to

Guatemala to marry, and re-entered the United States. Hector’s wife, Gloria, and

their daughter, Joselin, entered the country in 1994. 1 The Santoses now reside in

Oklahoma City, Oklahoma, where Hector has been employed as a cook and Gloria

has worked in housekeeping at a local hotel. Since arriving in the United States,

Hector and Gloria have had two more children, Carina and Beverly, both of whom

are United States citizens.

       In 2005, the Santoses were issued a Notice to Appear before an

Immigration Judge (“IJ”). The Santoses retained an accredited representative to

assist them in the proceedings before the IJ. The representative filed applications

for cancellation of removal on the Santoses’ behalf. 2 After a hearing held on

       1
          Joselin Santos Mazariegos is also a native and citizen of Guatemala. Although
she is named as a party to this action, the BIA’s basis for rejecting Joselin’s application
for cancellation of removal differed from its basis for rejecting her parents’ applications.
See A.R. at 2 n.1. The Santoses do not argue that the BIA erred in rejecting Joselin’s
application. They do, however, contend that Joselin may become eligible for cancellation
of removal if her parents’ petition for review is successful. See Petitioners’ Br. 19.
Because we deny the Santoses’ petition, we need not address the issue of Joselin’s
eligibility for cancellation of removal.
       2
         According to 8 U.S.C. § 1229b(b) as it was written at the time of the Santoses’
hearing, the Attorney General may cancel removal of an alien who is inadmissible or

                                            -2-
November 16, 2005, the IJ concluded that the Santoses had failed to establish that

their two United States citizen children would suffer exceptional or extremely

unusual hardship as a result of the Santoses’ removal from the United States.

Accordingly, the IJ denied the Santoses’ applications for cancellation of removal.

The IJ granted the Santoses’ applications for voluntary removal and ordered the

Santoses to depart no later than January 17, 2006. The Santoses appealed the IJ’s

ruling to the BIA, which affirmed the IJ’s ruling without opinion. The BIA also

reinstated voluntary departure, requiring the Santoses to depart by May 27, 2007.

      Prior to the expiration of the voluntary departure period, petitioners

obtained new counsel and filed a motion to reopen their case with the BIA.

Petitioners claimed their case should be reopened because their previous



deportable from the United States if the following conditions are met:

      (A) [the alien] has been physically present in the United States for a continuous
      period of not less than 10 years immediately preceding the date of such
      application;

      (B) [the alien] has been a person of good moral character during such period;

      (C) [the alien] has not been convicted of an offense under section 1182(a)(2),
      1227(a)(2), or 1227(a)(3) of this title (except in a case described in section
      1227(a)(7) of this title where the Attorney General exercises discretion to grant a
      waiver); and

      (D) [the alien] establishes that removal would result in exceptional and extremely
      unusual hardship to the alien's 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) (current version at 8 U.S.C. § 1229b(b) (Supp. 2009)).

                                           -3-
representative had failed to call witnesses and present evidence that would have

established the level of hardship necessary to support a grant of cancellation of

removal. 3 They further claimed their case should be reopened on the basis of new

evidence that, since the deportation order was entered, Carina had experienced

psychological distress and anxiety attacks. Petitioners also filed a motion for stay

of deportation and extension of voluntary departure, as well as a motion to

expedite either of the two motions before the BIA.

       The BIA denied petitioners’ motion to reopen. It concluded that petitioners

had failed to demonstrate they had suffered any prejudice as a result of their

representative’s actions. Specifically, the BIA determined that the evidence the

representative allegedly failed to introduce would not have had an effect on the

outcome of the proceedings. The BIA held that “the respondents would have been

unable to establish exceptional and extremely unusual hardship to . . . qualifying

relatives irrespective of whether their former representative had presented the

additional evidence that [was] submitted with their motion to reopen.” A.R. at 3.


       3
          In support of their motion to reopen, petitioners submitted evidence to the BIA
that, they claim, should have been presented in support of their application for
cancellation of removal. The evidence allegedly omitted includes (1) medical reports
pertaining to the health concerns of the Santoses’ two United States citizen children, (2)
statements of a teacher and a principal regarding the educational hardships that the
children would face in Guatemala, (3) a 2005 country conditions report on Guatemala,
and (4) a psychologist’s report discussing the difficulties that the Santoses’ United States
citizen children would face if they remained in the United States without their parents and
opining that the children would be deprived of educational opportunities and healthcare in
Guatemala.

                                            -4-
The BIA further concluded that petitioners had failed to demonstrate that their

case should be reopened in light of newly discovered evidence. The BIA did not

rule on petitioners’ motion for stay of deportation and extension of voluntary

departure. Petitioners timely filed this appeal, and this court subsequently

granted petitioners’ unopposed emergency motion for stay of removal pending

consideration of their petition for review.

                                   II. Discussion

A.    Jurisdictional Analysis

      We first address the Government’s jurisdictional argument. The

Government asserts we have no jurisdiction to determine whether the omissions

of petitioners’ former representative could have altered the outcome of the case

because the ultimate hardship determination is a “discretionary determination”

and “purely a judgment call on the part of the Board.” See Respondent’s Br. 18-

20 (citing 8 U.S.C. § 1252 (a)(2)(B)(i) and Morales Ventura v. Ashcroft, 348 F.3d

1259, 1262 (10th Cir. 2003)).

      As we previously have recognized, § 1252(a)(2)(B)(i) does not deprive us

of jurisdiction if the exception to that provision, 8 U.S.C. § 1252(a)(2)(D),

applies. Alzainati v. Holder, 568 F.3d 844, 850 (10th Cir. 2009). Section

1252(a)(2)(D) specifically permits this court to review “constitutional claims or

questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D);

see also Alzainati, 568 F.3d at 850 (“[Section 1252(a)(2)(D)] permits judicial

                                          -5-
review of constitutional claims and questions of law.”). The Santoses’ claim falls

within this exception. The Santoses’ challenge is not directed solely at the BIA’s

discretionary factual determination that the omitted evidence would not have

affected the outcome of their case; instead, the Santoses are challenging the

standard the BIA applied in reaching that decision. Because the claim implicates

the Santoses’ due process rights, we have jurisdiction to review the BIA’s

decision. See Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (reviewing the

BIA’s denial of the petitioner’s motion to reopen and recognizing that the

petitioner’s claim that his retained counsel was ineffective implicated the

petitioner’s Fifth Amendment rights). 4

B.    The Santoses’ Claims

      The Santoses raise three issues on appeal: First, they assert that the BIA

applied the wrong standard in reviewing their ineffective-assistance-of-counsel

claim. Second, they claim that the voluntary departure period should have been

tolled when they filed their motion to reopen. Third, they maintain that the BIA

erred in failing to rule on their motion for stay of removal and extension of




      4
         See also Bernabe-Orduno v. Gonzales, 244 F. App’x 190, 192 n.1 (10th Cir.
2007) (unpublished) (“Notwithstanding § 1252(a)(2)(B), because the question of
ineffective assistance of counsel in immigration proceedings is grounded in the
constitutional claim of a due-process violation, we have jurisdiction to consider [the
petitioner’s] claim under 8 U.S.C. § 1252(a)(2)(D).” (citation omitted)).

                                            -6-
voluntary departure. 5

      1.      The Ineffective-Assistance Claim

      We turn first to the Santoses’ claim that the BIA applied the wrong

standard of review when it denied their motion to reopen proceedings based on

alleged ineffective assistance. “We review the BIA’s decision on a motion to

reopen for an abuse of discretion. The BIA abuses its discretion when its

decision provides no rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary or conclusory

statements.” Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (citation

and quotation marks omitted); see Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th

Cir. 2003).

      Although there is no Sixth Amendment right to counsel in civil deportation

proceedings, “the Fifth Amendment guarantees aliens subject to deportation the

right to a fundamentally fair deportation proceeding.” Osei, 305 F.3d at 1208; see

Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999) (per curiam). Thus,

a petitioner’s claim that his counsel was ineffective may implicate the Fifth

Amendment if the petitioner can show that “his counsel’s ineffective assistance so

prejudiced him that the proceeding was fundamentally unfair.” Akinwunmi, 194

F.3d at 1341 n.2 (citation omitted).

      5
         The Santoses admit that the denial of the motion to reopen on the basis of new,
previously unavailable evidence is a discretionary decision and do not seek review of the
denial on that particular basis. Pet. Br. 17.

                                           -7-
      The Santoses claim the BIA abused its discretion by applying an improper

standard when assessing the impact of their representative’s conduct. According

to the Santoses, the BIA’s ruling was based on its determination that “the

[additional] evidence did not establish that any hardship the qualifying relative

may face upon their parents’ removal to Guatemala would rise to the level of

exceptional and extremely unusual.” Petitioners’ Br. 21. The Santoses assert

that, by basing its ruling on that determination, the BIA impermissibly required

them to establish that a qualified relative would suffer from exceptional and

extremely unusual hardship if they were deported. The Santoses maintain that

they were not required to meet this strict standard in order to prevail on their

motion to reopen; instead, they submit, they were required to demonstrate only

that their representative’s deficient performance may have impacted the outcome

of the proceedings. See Petitioners’ Br. 18 (quoting Godinez v. Keisler, 249 F.

App’x 555, 557 (9th Cir. 2007) (unpublished)). The Santoses submit that their

motion to reopen would have been granted under this more lenient standard, as

the outcome of the proceedings may have differed had their representative

introduced the medical reports pertaining to the Santos children’s health issues,

the letters discussing the educational hardship that the Santos children would face

if they were to leave the United States, and the Country Conditions Report on

Guatemala.

      This court has not adopted the rule that, to establish prejudice, the

                                         -8-
petitioner “need only demonstrate that the deficient performance by counsel may

have affected the outcome of proceedings,” Godinez, 249 F. App’x at 557

(emphasis added), and we decline to do so now. Contrary to the Santoses’

assertions, a petitioner claiming to be prejudiced by his representative’s

ineffective assistance must do more than demonstrate that the outcome of the

proceedings may have differed absent the deficient representation. In order to

demonstrate prejudice under this circuit’s case law, a petitioner is required to

show there is a reasonable likelihood that he would have obtained the relief

sought absent his representative’s misconduct. See United States v. Aguirre-

Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc); see also Lopez v. Mukasey,

313 F. App’x 96, 100 (10th Cir. 2008) (unpublished) (citing Aguirre-Tello, 353

F.3d at 1209) (applying the “reasonable likelihood” standard to the petitioner’s

ineffective assistance claim).

      We conclude that the BIA applied the appropriate standard of review in

analyzing whether the Santoses were prejudiced by their representative’s deficient

performance. Although the BIA did not discuss the “reasonable likelihood”

standard in its opinion, it nevertheless evaluated the evidence that the Santoses’

representative failed to introduce and concluded that, even if the representative

had introduced that evidence, the Santoses would have been unable to establish

exceptional and extremely unusual hardship. A.R. at 3. In short, the BIA found

that there was no reasonable likelihood that the representative’s deficient


                                         -9-
performance affected the outcome of the proceedings. Accordingly, it concluded

that the Santoses were not prejudiced by their counsel’s failure to introduce the

additional evidence. The BIA did not abuse its discretion in reaching this

conclusion. Cf. Lopez, 313 F. App’x at 101-02 (holding that the BIA did not

abuse its discretion in concluding that the petitioner “failed to show prejudice . . .

because even if [his] representative had raised crosschargeability, it would not

have altered the outcome of his case as [the petitioner] was ineligible for

crosschargeability”).

       2.     Whether the Motion to Reopen Automatically Tolled the
              Voluntary Departure Period.

       We now turn to the Santoses’ assertion that the voluntary departure period

should have been tolled automatically when they filed their motion to reopen

proceedings. 6 The Santoses point out that, if an alien who has been granted

       6
          The Government asserts that this court cannot address the issue of whether a
timely filed motion to reopen automatically tolls the voluntary departure date because the
BIA did not decide the issue. See Respondent’s Br. 36. Despite the Government’s
contentions, we believe this issue is properly before us. In its brief, the Government
states that, in essence, the Santoses asked the BIA toll the voluntary departure period. See
Respondent’s Br. 33 n.10; see also A.R. at 57, 67 (discussing the Santoses’ choice
between departing voluntarily and pursuing their motion to reopen, and requesting an
extension of voluntary departure). On appeal, the Santoses claim that the BIA erred by
failing to rule on that issue. The question of whether the BIA was required to toll the
voluntary departure period is central to the Santoses’ claim that the BIA erred by failing
to do so. Therefore, this court may address the issue insofar as it pertains to the Santoses’
claim of error. Cf. Lopez v. Mukasey, 313 F. App’x 96, 102-03 (10th Cir. 2008)
(unpublished) (addressing the BIA’s authority to rule on the motion to extend time for
voluntary departure in conjunction with its analysis of whether the BIA erred in failing to
rule on that motion). Furthermore, to the extent the Government argues that we must
remand this question so the BIA may bring its expertise to bear on the issue, see

                                            -10-
voluntary departure remains in the country after his departure date, he will be

subject to civil penalties. See 8 U.S.C. § 1229c(d). If, however, the alien leaves

the country while a motion to reopen proceedings is pending, the motion to

reopen will be deemed withdrawn. 8 C.F.R. § 1003.2(d). As a result of the

interplay between these two provisions, many aliens, like the Santoses, face the

difficult choice of either (1) departing in a timely fashion and abandoning their

motions to reopen, or (2) pursuing their motions to reopen at the cost of becoming

subject to the penalties associated with overstaying their voluntary departure

dates. The Santoses submit that the filing of a motion to reopen proceedings

should automatically toll the voluntary departure period so that aliens granted

voluntary departure would not be required to make such a choice.

      At the time this case was argued, the circuits were divided over the

appropriate means of dealing with an alien who had filed a motion to reopen prior

to his voluntary departure date, but whose case had not been, or could not be,

decided by the expiration of the voluntary departure period. 7 The Supreme Court


Respondent’s Br. 36, we conclude that any remand would be futile in light of the
Supreme Court’s intervening decision in Dada v. Mukasey, 128 S.Ct. 2307 (2008). See
infra.
      7
         Compare Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005) (permitting the
voluntary departure period to be tolled when a motion to reopen was filed prior to the
voluntary departure date), and Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005)
(same), with Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006) (concluding
that the filing of a motion to reopen does not automatically toll the voluntary
departure period), and Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006)
(same).

                                          -11-
has since resolved the circuit split, finding no statutory authority for the

proposition that the voluntary departure period should be tolled automatically

during the pendency of a motion to reopen. Dada v. Mukasey, 128 S.Ct. 2307,

2318-19 (2008). In light of the Supreme Court’s decision in Dada, we must reject

the Santoses’ argument that their departure date should have been tolled

automatically. As the Supreme Court has indicated, the appropriate means of

remedying the dilemma faced by an alien who has been granted voluntary

departure but who seeks to reopen his case is to permit that alien to file a motion

to withdraw his voluntary departure request. Id. at 2319-20.

      3.       The Motion for Stay of Removal and Extension of Voluntary
               Departure

      We turn next to the Santoses’ claim that the BIA erred by failing to rule on

the Santoses’ motion for stay of deportation and extension of voluntary departure.

The Santoses ask this court to remand this case to the BIA so that it may rule on

that motion.

      We conclude that it is unnecessary to remand this case to the BIA. To the

extent the Santoses claim the BIA erred by failing to rule on their motion for a

stay of removal, that claim became moot when this court granted petitioners’

unopposed motion for stay of removal. To the extent the Santoses claim the BIA

erred in failing to rule on their motion for an extension of voluntary departure, we

conclude that it would be futile to remand this case to the BIA because the BIA



                                          -12-
lacks authority to grant such an extension. According to the Code of Federal

Regulations, the authority to extend time for voluntary departure rests exclusively

with the district director for the Department of Homeland Security, the Deputy

Executive Associate Commissioner for Detention and Removal, and the Director

of the Office of Juvenile Affairs. 8 C.F.R. § 1240.26(f); see also Dada, 128 S.Ct.

at 2313 (“Appropriate immigration authorities may extend the time to depart but

only if the voluntary departure period is less than the statutory maximum in the

first instance.”); Lopez, 313 F. App’x at 102 (concluding that the BIA lacked

authority to rule on the petitioner’s motion for an extension of voluntary

departure, which was filed before the Supreme Court issued its ruling in Dada).

                                  III. Conclusion

      In sum, we hold that the BIA did not abuse its discretion when it denied the

Santoses’ motion to reopen the proceedings. Furthermore, we reject the Santoses’

claim that their voluntary departure period should have been tolled automatically

during the pendency of their motion to reopen. We conclude that it is

unnecessary to remand this case to the BIA, as the BIA is without authority to

grant the Santoses’ motion for extension of voluntary departure. Accordingly, we

DENY the petition for review and lift the stay of removal previously entered.

                                               ENTERED FOR THE COURT

                                               Gregory K. Frizzell
                                               District Judge



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