    Case: 15-60825   Document: 00514185630      Page: 1   Date Filed: 10/05/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 15-60825                            FILED
                                                                  October 5, 2017
                                                                   Lyle W. Cayce
                                                                        Clerk

MARIA DE LOS ANGELES LOWE, Also Known as Maria Lowe-Alarcon,
Also Known as Maria Alarcon Cervantes,

                                         Petitioner,

versus

JEFFERSON B. SESSIONS III, U.S. Attorney General,

                                         Respondent.




                     Petition for Review of an Order of
                     the Board of Immigration Appeals




Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Maria Lowe petitions for review of an order of the Board of Immigration
Appeals (“BIA” or “Board”) denying a motion to reconsider her motion to re-
open. Finding no error, we deny the petition.

                                         I.
     Lowe is a native and citizen of Mexico who entered the United States
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                                 No. 15-60825
unlawfully in 1996. In 2007, she received an adjustment of immigration status
from illegal alien to lawful permanent resident. In October 2010, she was
convicted of aiding and abetting the improper entry of an alien.

      The Department of Homeland Security (“DHS”) began removal proceed-
ings against Lowe. Under 8 U.S.C. § 1227(a)(1)(E)(i), aliens are removable who
“prior to the date of entry, at the time of any entry, or within 5 years of the
date of any entry[ ] knowingly [ ] encouraged, induced, assisted, abetted, or
aided any other alien to enter or to try to enter the United States in violation
of law.” DHS alleged that Lowe’s conviction of aiding and abetting qualified
under § 1227 and that, though she physically entered the United States in
1996, her adjustment of status constituted “entry,” as a matter of law, for
purposes of the statute.

      At her removal hearing before an immigration judge (“IJ”), Lowe admit-
ted to being a citizen of Mexico and to having her status adjusted in 2007; she
contested her 2010 conviction. The IJ determined that the adjustment of
status in 2007 constituted Lowe’s entry and that the conviction rendered her
removable. Lowe appealed to the BIA and, importantly, contended only that
her conviction did not qualify under Section 1227. The BIA rejected that theory
and dismissed the appeal in March 2015.

      Lowe did not petition for review of that decision. Instead, in June 2015
she filed a motion to reopen with the BIA. She asserted ineffective assistance
of counsel (“IAC”), claiming that her original counsel had performed ineffec-
tively by failing to argue that her only date of entry was her initial 1996 entry
and that her 2007 adjustment of status did not count as an entry. The BIA
rejected that theory and denied the motion to reopen in August 2015.

      Lowe filed a motion for reconsideration, which reasserted her ineffective-
assistance and date-of-entry arguments, and the BIA again denied those
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claims, this time in October 2015. Lowe then filed the instant petition for
review, pressing only her claim that the BIA erred in rejecting her argument
as to the date of entry.

                                              II.
       It is important to remember that we are not evaluating the merits of
Lowe’s arguments. Instead, we decide only whether her motion to reconsider
in regard to her subsequent motion to reopen was improvidently denied.

       “The decision to grant or deny a motion to reopen or reconsider is within
the discretion of the Board[,]” and “[t]he Board has discretion to deny a motion
to reopen even if the party moving has made out a prima facie case for relief.”
8 C.F.R § 1003.2(a). Thus, the standards for review of such motions are ex-
tremely deferential. 1 “We review the Board’s denial of both a motion to reopen
and a motion for reconsideration under a highly deferential abuse-of-discretion
standard.” 2 We uphold the decision if it “is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Id.
Legal conclusions are reviewed de novo “unless a conclusion embodies the
Board’s interpretation of an ambiguous provision of a statute that it adminis-
ters.” Id. In that event, we accord Chevron deference. Id.



       1 See INS v. Abudu, 485 U.S. 94, 105–10 (1988) (utilizing the abuse-of-discretion stan-
dard to review a motion to reopen); Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (using
an abuse-of-discretion standard for both a motion to reconsider and a motion to remand); see
also Barahona-Cardona v. Holder, 417 F. App’x 397, 398 (5th Cir. 2011) (“A motion to reopen
is reviewed under a highly deferential abuse-of-discretion standard.”); Castillo-Gonzalez v.
Holder, 363 F. App’x 283, 287 (5th Cir. 2010) (reviewing a motion to reconsider for abuse-of-
discretion); Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009) (“In reviewing the
denial of a motion to reopen, this court applies a highly deferential abuse-of-discretion
standard.”).
       2Singh, 436 F.3d at 487 (internal quotation marks omitted) (quoting Zhao v. Gonzales,
404 F.3d 295, 301 (5th Cir. 2005)).
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       Section 1003.2 is the regulation governing motions to reconsider or re-
open proceedings before the BIA. Section 1003.2(b)(1) requires “[a] motion to
reconsider [to] state the reasons for the motion by specifying the errors of fact
or law in the prior Board decision and shall be supported by pertinent author-
ity.” The “prior Board decision” was Lowe’s motion to reopen.

       Section 1003.2(c)(1) deals specifically with motions to reopen; it requires
that “[a] motion to reopen proceedings 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.” Similarly, “[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 available and could not have been
discovered or presented at the former hearing . . . .” Id.

       This would seem to be fatal to Lowe’s motion to reopen—she presents no
new evidence or new facts in her motion to reopen, her motion to reconsider, or
her appeal. 3     There is, however, another means of pressing a motion to
reopen—through an IAC claim. 4 It follows that Lowe’s IAC claims provided an



       3See, e.g., Matter of Ige, 20 I. & N. Dec. 880, 883 (BIA 1994) (“A motion to reopen must,
among other things, state the new facts to be considered at the reopened hearing and must
be supported by affidavits or other evidence.”).
       4 See Matter of Lozada, 19 I. & N. Dec. 637, 638–39 (BIA 1988) (permitting IAC claims
on motions to reopen). But there is some doubt whether IAC claims can be properly brought
on a motion to reopen. In Matter of Compean (Compean I), 24 I & N. Dec. 710 (A.G. 2009),
Attorney General Mukasey overruled Lozada, finding that there was no right to effective
assistance in removal hearings because there was no constitutional right to counsel in immi-
gration proceedings. Compean I, 24 I & N at 714. Attorney General Holder overruled Com-
pean I some six months later, restoring the Lozada regime. See Matter of Compean, 25 I. & N.
Dec. 1, 1–3 (A.G. 2009). General Holder also directed the Executive Office for Immigration
Review to come up with “a revised framework for reviewing claims of ineffective assistance
of counsel in immigration proceedings.” Id. at 2. As of January 2016, that rulemaking pro-
ceeding was still pending. See American Immigration Council, Practice Advisory 1–2 n.4
(Jan. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/-
seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_cases_practice_ad
visory.pdf. Regardless, the BIA considered the IAC claim.
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                                      No. 15-60825
initial basis for her motion to reopen.

       But there is still an insurmountable obstacle for Lowe: She has waived
this claim before this court. In both her motion to reopen and her motion to
reconsider in the BIA, Lowe specifically alleged IAC, then proceeded to discuss
the merits of the IJ’s initial decision regarding the timing of her entry. In her
briefing in this court, by contrast, Lowe alludes to her IAC claims only as part
of the recitation of facts in her opening brief and does not mention them at all
in her petition for review. Failure to brief an issue on appeal constitutes
waiver. 5 That circumstance dictates the result. Again, we are examining a
motion to reconsider an initial motion to reopen. Valid grounds for motions to
reopen include new facts or evidence, see Ige, 20 I. & N. Dec. at 883, or IAC, see
Lozada, 19 I. & N. Dec. at 638–39, but Lowe presents only claims of legal error.
We could generously characterize those arguments as going to whether she
was prejudiced by her counsel’s alleged ineffective assistance, but that still
leaves Lowe’s briefing devoid of evidence or argument that her counsel was
ineffective. We therefore make no ruling on the merits, including Lowe’s
argument regarding time of entry.

       The petition for review is DENIED.



                                          * * * *
STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
       Because this court’s review is typically “confined to the BIA’s analysis
and reasoning,” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir.
2010), I respectfully disagree with the majority’s waiver analysis. Had Lowe



       5 See, e.g., United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000); Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
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briefed the Lozada elements, we would not likely have considered them
because the BIA’s rationale for denying Lowe’s motion did not grapple with
those arguments, either. See id.; Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981)
(“[W]e are not permitted to consider reasons [for affirming the BIA] other than
those [the BIA] advanced.”). Rather, the BIA denied Lowe’s motion to
reconsider because in its view it had correctly determined her adjustment of
status was an “entry” into the United States. That conclusion, however, flouts
our precedents. See Marques v. Lynch, 834 F.3d 549 (5th Cir. 2016); Martinez
v. Mukasey, 519 F.3d 532 (5th Cir. 2008). I would therefore grant the petition.




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