      11-88
      Taveras v. Holder
                                                                                      BIA
                                                                              A038 930 763
                               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.

 1         At a stated term of the United States Court of Appeals
 2    for the Second Circuit, held at the Daniel Patrick Moynihan
 3    United States Courthouse, 500 Pearl Street, in the City of New
 4    York, on the 9th day of August, two thousand twelve.
 5
 6    PRESENT:
 7             JOSÉ A. CABRANES,
 8             RICHARD C. WESLEY,
 9             SUSAN L. CARNEY,
10                  Circuit Judges.
11    _________________________________________
12
13    JUAN RAFAEL TAVERAS, AKA JOSELO,
14    AKA JUAN TAVERAS,
15             Petitioner,
16
17                        v.                                  11-88-ag
18                                                            NAC
19    ERIC H. HOLDER, JR., UNITED STATES
20    ATTORNEY GENERAL,
21             Respondent.
22    _________________________________________
23
24    FOR PETITIONER:                  Earl Ian Laidlow, New York, N.Y.
25
26    FOR RESPONDENT:                  Tony West, Assistant Attorney General;
27                                     Jamie M. Dowd, Senior Litigation
28                                     Counsel; Andrew N. O’Malley, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department of
31                                     Justice, Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a Board

 2   of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

 3   ADJUDGED, AND DECREED, that the petition for review is DENIED.

 4        Petitioner Juan Rafael Taveras, a native and citizen of the

 5   Dominican Republic, seeks review of a November 24, 2010, decision

 6   of the BIA denying his motion to reopen.   In re Juan Rafael

 7   Taveras, No. A038 930 763 (B.I.A. Nov. 24, 2010).     We assume the

 8   parties’ familiarity with the underlying facts and procedural

 9   history of the case.

10        We review the BIA’s denial of a motion to reopen for abuse of

11   discretion, mindful of the Supreme Court’s admonition that such

12   motions are “disfavored.”   Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).

14   An alien claiming ineffective assistance of counsel

15   “must . . . show prejudice resulting from counsel’s alleged

16   deficiencies.”   Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir.

17   2010); see also Vartelas v. Holder, 620 F.3d 108, 113 (2d Cir.

18   2010).   Because the agency reasonably concluded that Taveras failed

19   to show prejudice, the agency did not abuse its discretion in

20   denying his motion to reopen.

21        Taveras first argues that his counsel’s failure to adduce

22   testimony or a written statement from Eugenia Bautista, Taveras’s

23   live-in girlfriend, prejudiced him because Bautista would have

24   provided evidence of Taveras’s good moral character and his


                                       2
 1   rehabilitation.   The agency did not abuse its discretion in

 2   concluding that Taveras failed to demonstrate that he was

 3   prejudiced by the absence of such a statement.   During his hearing,

 4   Taveras testified about his relationship with Bautista, including

 5   that he resided with her and her two children, that she was aware

 6   of his criminal conviction, that she supported his effort to obtain

 7   cancellation of removal, and that he had no problems with her

 8   children.   Nothing in the immigration judge’s (“IJ”) decision

 9   suggests that the IJ did not credit Taveras’s testimony in this

10   respect, and, in weighing the equities of Taveras’s case, the IJ

11   noted that Bautista was supportive of Taveras.   Further, Bautista’s

12   affidavit in support of reopening provided no basis for the agency

13   to conclude that Taveras had been prejudiced by the omission of

14   Bautista’s testimony at his hearing, as the affidavit does not

15   detail how Bautista would have testified.   Rather, in addition to

16   asserting her willingness to testify on his behalf, Bautista stated

17   only that she and Taveras had lived together for four years, that

18   they had a “good and solid relationship,” that he provided her

19   children with emotional support, that she believed he had been

20   rehabilitated, and that she believed he deserved cancellation of

21   removal.    Much of this is repetitive of Taveras’s testimony

22   regarding his relationship with Bautista and her children, and,

23   thus, provides no basis for concluding that the IJ would have made

24   a different decision had Bautista testified.

25

                                        3
 1         Moreover, the IJ indicated that he did not believe that

 2   Bautista had a clear understanding of the conduct underlying

 3   Taveras’s conviction.   Although Taveras argues that this

 4   demonstrates that the IJ would have benefitted from Bautista’s

 5   testimony, Bautista’s affidavit does not reflect that she did, in

 6   fact, understand the facts of Taveras’s conviction, as the

 7   affidavit does not discuss this issue.   Absent evidence that

 8   Bautista’s testimony would have demonstrated a full understanding

 9   of Taveras’s conviction – and that this would have altered the IJ’s

10   decision regarding cancellation of removal – there is no basis to

11   conclude that the agency abused its discretion in determining that

12   Taveras was not prejudiced.

13        Second, Taveras argues that his counsel erred by failing to

14   provide the IJ with evidence that Taveras had completed sex-

15   offender-specific treatment.   Taveras, however, provided the agency

16   with no evidence demonstrating that, at the time of his hearing, he

17   had actually completed any such treatment.   Taveras contends that

18   the timely submission of the Klosek Clinic discharge summary –

19   which the IJ rejected as untimely filed – would have changed the

20   outcome of his proceedings because it would have demonstrated that

21   he was rehabilitated and was willing to address the personal issues

22   that led to his conviction.    He similarly argues that his

23   attorney’s failure to adduce testimony from a Klosek Clinic

24   representative was prejudicial for the same reasons.   There is no

25   evidence that the agency abused its discretion.   In weighing the

                                        4
 1   equities of Taveras’s case, the IJ noted that Taveras had not

 2   sought treatment specifically for sex offenders, and, thus, had not

 3   “received or sought the best or most appropriate treatment for any

 4   problems he may have had.”   The IJ relied on the pre-sentence

 5   report’s description of the treatment Taveras received at the

 6   Klosek Clinic, which noted that Richard Klosek had diagnosed

 7   Taveras with pedophilia and alcohol abuse, and that Taveras was

 8   beginning group therapy at the time the pre-sentence report was

 9   prepared.   The pre-sentence report also noted that Taveras was not

10   participating in sex offender treatment, that Klosek had

11   recommended that he do so, and that the treatment that he was

12   receiving at the clinic was “adjunctive” to sex offender treatment.

13   The discharge summary that was rejected as untimely reflects merely

14   that Taveras underwent treatment for alcohol and substance abuse

15   issues.   It does not indicate that Taveras underwent sex-offender-

16   specific treatment; nor does it contradict the pre-sentence

17   report’s statement that the treatment at the Klosek Center was

18   adjunctive to, and not a replacement for, sex offender treatment.

19   As to Taveras’s   contention that his counsel should have adduced

20   testimony from a Klosek Clinic representative, he did not provide

21   the BIA with any evidence regarding how that representative would

22   have testified, and, thus, offers no basis for determining that the

23   absence of that testimony prejudiced him.

24        The record reflects that Taveras failed to offer the agency

25   any evidence either that he had completed sex-offender-specific

                                       5
 1   treatment prior to his hearing, or that his counsel’s allegedly

 2   ineffective assistance resulted in that evidence being excluded by

 3   the IJ.   Absent such evidence, there is no basis for concluding

 4   that the inclusion of the discharge summary or testimony from a

 5   Klosek Clinic representative would have addressed the IJ’s concern

 6   that Taveras had not obtained appropriate treatment for his

 7   problems.   Accordingly, there is no evidence that these alleged

 8   errors were prejudicial.

 9        Third, Taveras argues that his counsel erred in failing to

10   obtain a psychological evaluation regarding the likelihood that he

11   would re-offend, and whether he had been rehabilitated.    Taveras

12   obtained such a report from the Consulting Project and submitted it

13   in support of his motion to reopen.   The IJ’s decision in this case

14   demonstrates that the lack of evidence regarding Taveras’s

15   rehabilitation weighed against cancellation in the IJ’s weighing of

16   the equities.   However, Taveras did not provide the agency with any

17   argument or explanation detailing how the report from the

18   Consulting Project – had it been provided to the IJ – would have

19   changed the outcome of his cancellation hearing.   This is

20   particularly important given that the lack of evidence relating to

21   Taveras’s rehabilitation was not the sole basis for the IJ’s

22   decision to deny cancellation.   Accordingly, Taveras failed to

23   demonstrate that the absence of that report was prejudicial.

24        Taveras’s arguments that the agency failed to give proper

25   weight to the Consulting Project’s report or give a full

                                       6
 1   explanation for its conclusion that the report was not a sufficient

 2   basis to grant reopening, are similarly unavailing.   We do not

 3   “demand that the BIA expressly parse or refute on the record each

 4   individual argument or piece of evidence offered by the

 5   petitioner.”    Jin Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

 6   2008) (internal quotation marks omitted).   Moreover, the agency’s

 7   decision reflects that it did consider the report despite the fact

 8   that Taveras submitted it without explanation or argument regarding

 9   its significance.   Accordingly, the agency did not abuse its

10   discretion in its consideration of the Consulting Project report.

11        Finally, Taveras argues that his counsel improperly failed to

12   object to the admission of the pre-sentence report.   Taveras,

13   however, offers no basis for concluding that the failure was an

14   error.   Taveras conclusorily asserts that the pre-sentence report

15   was obtained in violation of New York State law.   He fails,

16   however, to explain either how that violation is evidenced by the

17   record or in what way that purported violation of state law renders

18   its use in a federal administrative proceeding improper.   Further,

19   there is no basis for concluding that the IJ would have excluded

20   the pre-sentence report had counsel objected to it, as the IJ is

21   permitted to consider documents not part of the formal record of

22   conviction when determining whether to grant discretionary relief

23   from removal.    See, e.g., Carcamo v. U.S. Dep’t of Justice, 498

24   F.3d 94, 98 (2d Cir. 2007).   Accordingly, there is no basis for

25   concluding that Taveras was prejudiced by that failure.    Because

                                        7
 1   Taveras has failed to demonstrate that he was prejudiced by any of

 2   the alleged errors of his counsel, the agency did not abuse its

 3   discretion in denying his motion to reopen. See Debeatham, 602 F.3d

 4   at 485.

 5        For the foregoing reasons, the petition for review is DENIED.

 6   As we have completed our review, any stay of removal that the Court

 7   previously granted in this petition is VACATED, and any pending

 8   motion for a stay of removal in this petition is DISMISSED as moot.

 9   Any pending request for oral argument in this petition is DENIED in

10   accordance with Federal Rule of Appellate Procedure 34(a)(2), and

11   Second Circuit Local Rule 34(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk

14




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