                                                                             FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 28, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                   Clerk of Court



    ANTONIO CAMBEROS,

                Petitioner,

    v.                                                   No. 07-9556
                                                     (Petition for Review)
    MICHAEL B. MUKASEY,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Antonio Camberos, a Mexican citizen, petitions for review of an order

issued by the Board of Immigration Appeals (BIA) denying his motion to reopen

removal proceedings initiated against him. Discerning no abuse of discretion on

the part of the BIA, we deny Camberos’ petition for review.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      Camberos was paroled into the United States on July 20, 1999, to pursue an

application for adjustment of status based on his marriage to Camille Elaine

Hogue, a United States citizen, and Hogue’s petition for an alien relative

(Form I-130). By October 21 of the same year, Camberos and Hogue separated

and she withdrew her petition. Camberos was placed in removal proceedings.

      Camberos, represented by counsel, conceded removability at a hearing

before an Immigration Judge (IJ) in April 2003. He explained, however, that he

had been abused by Hogue and that he wished to file a special immigrant visa

application (Form I-360). See 8 U.S.C. § 1154(a)(1)(A)(iii)(I), (II)(aa)(CC)(ccc)

(setting forth the procedure for adjustment to immigrant status for an alien whose

marriage to a U.S. citizen terminated on account of “battering or extreme cruelty

by the United States citizen spouse”); 8 C.F.R. §§ 204.1(a)(3), 204.2(c)

(describing visa self-petitioning procedure).

      Camberos, however, married another United States citizen only two weeks

before his next scheduled hearing. Thus, he became ineligible for a visa as a

battered spouse. See Admin. R. at 14 (denying visa application because

Camberos’ divorce and remarriage meant that he could not demonstrate a

qualifying relationship). At the hearing, the attorney notified the IJ that

Camberos was abandoning his I-360 application and requested a continuance for

the adjudication of Camberos’ new application for adjustment of status based

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upon his recent marriage. The IJ denied the continuance request, observing that

the case had been pending three years and the court was “not going to wait

another year or year and a half for [Camberos] to get this situation straightened

out.” Admin. R. at 183. Noting that it “looks like . . . a case that’s . . . going to

go forever,” the IJ ordered Camberos removed. Id. at 188. Camberos’ attorney

filed a notice of appeal with the Board of Immigration Appeals (BIA), but failed

to file a separate brief.

       The BIA dismissed the appeal on May 22, 2006, on the merits. It found no

error in the IJ’s “conclusion that the respondent’s speculative future eligibility for

adjustment of status fails to establish good cause for a continuance.” Id. at 191.

In this court, the attorney followed a similar pattern: he filed a petition for

review without submitting a brief. Camberos’ petition for review was dismissed

for lack of prosecution on November 16, 2006. The court denied a new attorney’s

motion to revive the petition for review.

       On January 24, 2007, eight months after the BIA’s final decision,

Camberos filed an untimely motion to reopen on the ground that he had received

ineffective assistance from his previous counsel and he also requested equitable

tolling of the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2) (requiring a motion to

reopen removal proceedings to be filed within 90 days after the final

administrative decision). Camberos’ motion mentioned counsel’s failure to

pursue I-360 relief and also referred to Form EOIR-42B, which is an application

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pursuant to the battered-spouse provision of 8 U.S.C. § 1229b(b)(2) (allowing for

discretionary cancellation of removal if the alien establishes battering or extreme

cruelty, physical presence in the United States for at least three years, good moral

character, and extreme hardship arising from removal to the alien or a family

member who is a citizen or lawful resident).

      Nowhere in his motion to reopen did Camberos provide substantial factual

support for his claimed entitlement to 42B relief or provide meaningful legal

argument. Although the motion described his former wife’s post-separation drug

problems, her neglect of her children, and her misrepresentation of a child’s

paternity, it did not demonstrate extreme cruelty or explain how his removal

would result in extreme hardship to himself or any identified family member.

      The BIA first determined that the attorney proceeded properly when

Camberos’ marriage mooted his Form I-360 application. Further, no prejudice

flowed from counsel’s failure to file a BIA brief because the affirmance of the

removal order addressed the issues raised in the notice of appeal. Finally,

counsel’s failure to brief the petition for review in this court fell outside BIA

jurisdiction. The BIA did not specifically discuss the lack of a Form EOIR-42B

application, but commented generally that “the respondent, who has been the

subject of removal proceedings for over six years, has yet to establish his prima

facie eligibility for relief from removal.” Admin. R. at 3. Based on its

conclusion that Camberos “had failed to establish that his prior attorney’s conduct

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prejudiced his case,” the BIA denied the motion to reopen. Id. Camberos

petitioned for review in this court, arguing that he was prejudiced by his

attorney’s failure to apply for 42B relief and that the BIA’s omission of a specific

42B discussion was an “egregious mistake.” Pet’r Br. at 23.

                                          II.

      This court has jurisdiction to review the BIA’s denial of a motion to

reopen. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004). We

review the matter for an abuse of discretion, id. at 1362, and “will reverse only if

the BIA’s ‘decision provides no rational explanation, inexplicably departs from

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

conclusory statements.’” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.

2005) (quoting Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002)).

      “Because deportation proceedings are civil in nature, a claim of ineffective

assistance of counsel in a deportation proceeding may be based only on the Fifth

Amendment guarantee of due process.” Akinwunmi v. INS, 194 F.3d 1340, 1341

n.2 (10th Cir. 1999) (per curiam). The due-process analysis requires a showing

that the “counsel’s ineffective assistance so prejudiced [the alien] that the

proceeding was fundamentally unfair.” Id.

      In its decision, the BIA addressed the controlling issue: whether the case

presented ineffective-assistance-of-counsel claims warranting equitable tolling.

See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002) (requiring the BIA to

                                          -5-
examine motions to reopen based on ineffective assistance of counsel to

determine propriety of equitable tolling). After sorting through Camberos’

argument, the BIA denied the motion to reopen for lack of a showing of prejudice

flowing from the allegedly ineffective assistance.

      Contrary to Camberos’ contentions, the BIA did not abuse its discretion in

omitting a detailed discussion of 42B relief. A motion to reopen in the BIA must

“state the new facts that will be proven at a hearing to be held if the motion is

granted” and should be supported by affidavits, along with “other evidentiary

material.” 8 C.F.R. §§ 1003.2(c), 1003.23(b)(3); cf. Sanchez v. Keisler, 505 F.3d

641, 648 (7th Cir. 2007) (granting petition for review of denial of motion to

reopen where the motion provided “extensive evidence” of spousal abuse).

Camberos’ motion contained only a passing mention of 42B relief and failed to

provide evidentiary support for such a claim.

      The BIA’s order provided a rational explanation for its decision and

followed its established policies. We conclude that it did not abuse its discretion

and therefore we DENY the petition for review. Petitioner’s motion to proceed in

forma pauperis is granted.

                                                     Entered for the Court


                                                     Mary Beck Briscoe
                                                     Circuit Judge




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