                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                            April 22, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 GREGORIO HERNANDEZ,

       Petitioner,

 v.                                                           No. 18-9527
                                                          (Petition for Review)
 WILLIAM P. BARR, United States
 Attorney General,

       Respondent.
                        _________________________________

                            ORDER AND JUDGMENT**
                        _________________________________

Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges.
                  _________________________________

      The Department of Homeland Security (DHS) initiated removal proceedings

against Gregorio Hernandez, who entered the United States illegally from Mexico.

Hernandez conceded removability but sought cancellation of removal under § 240A(b)(1)



      
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, William P. Barr is substituted for Jefferson B. Sessions, III, as the
respondent in this action.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229b(b)(1). An Immigration

Judge (IJ) found Hernandez to be ineligible for cancellation of removal because he did

not have a qualifying relative at the time of his final hearing, see § 1229b(b)(1)(D), and

the Board of Immigration Appeals (BIA) dismissed his appeal. Hernandez then moved to

reopen his removal proceedings, alleging ineffective assistance by his former counsel.

The BIA denied his motion. Hernandez now petitions for review of the BIA’s denial of

his motion to reopen.1 Exercising jurisdiction under § 242 of the INA, 8 U.S.C. § 1252,

we deny the petition.

                                   I.      Background

       Gregorio Hernandez, a native and citizen of Mexico, entered the United States

illegally in 1987. In 2012, DHS charged him with removability as an alien present in the

United States without being admitted or paroled. Hernandez conceded removability but

sought cancellation of removal under § 1229b(b)(1). Relevant here, that provision allows

cancellation of removal when an alien establishes “that removal would result in




       1
         Hernandez also purports to challenge the BIA’s earlier decision denying
cancellation of removal. See Pet’r Opening Br. at 17-20. But his petition is timely only
as to the order denying the motion to reopen. See 8 U.S.C. § 1252(b)(1) (“The petition
for review must be filed not later than 30 days after the date of the final order of
removal.”). The filing of a motion to reopen does not affect the finality of the underlying
removal order; each order is separate and appealable. See Stone v. INS, 514 U.S. 386,
394 (1995) (“[D]eportation orders are to be reviewed in a timely fashion after issuance,
irrespective of the later filing of a motion to reopen or reconsider.”); see also id. at 405
(explaining Congress “envisioned two separate petitions filed to review two separate final
orders”).
                                             2
exceptional and extremely unusual hardship to the alien’s . . . child,2 who is a citizen of

the United States.” § 1229b(b)(1)(D). Hernandez cited exceptional and extremely

unusual hardship to his youngest daughter Karina, a United States citizen who has been

diagnosed with major depressive disorder, anxiety disorder with panic symptoms, and

fatty liver disease with complications due to emotional distress. Karina was born in

January 1995 and turned twenty-one in January 2016.

       Hernandez’s removal proceedings began in August 2012, when Karina was

seventeen years old. The IJ granted a few short continuances so Hernandez could retain

counsel and seek cancellation of removal. Hernandez submitted his application for

cancellation of removal in December 2012. He did not appear before an IJ again until a

hearing in May 2015; by this time, he had secured new counsel, Steven Paul. The

government moved to pretermit Hernandez’s application based on his conviction history.

It argued his felony DUI conviction in 2001 and several additional DUI convictions

resulted in five years or more of aggregate sentences to confinement, rendering him

inadmissible under § 212(a)(2)(B) of the INA, 8 U.S.C. § 1182(a)(2)(B). The IJ set the

matter for a status hearing in July 2015 to allow Hernandez to address this threshold

issue. At that hearing, his counsel asked for “a short period of time, a month or two,” to

continue to seek an amendment to his prior convictions. R. at 169. The IJ advised it




       2
        “A ‘child’ is ‘an unmarried person under twenty-one years of age.’” In re
Isidro-Zamorano, 25 I. & N. Dec. 829, 831 (BIA 2012) (quoting § 101(b) of the INA,
8 U.S.C. § 1101(b)(1), and citing cases in which courts have applied the definition
from that statute to the hardship requirement in § 1229b(b)(1)(D)).
                                              3
would be slightly longer because of his schedule, and the parties agreed to reconvene in

September 2015. In the interim, the state court reduced one of Hernandez’s DUI

convictions from a felony to a misdemeanor, making him eligible for cancellation of

removal.3

       At the September 2015 hearing, the government conceded Hernandez’s present

eligibility for cancellation of removal but noted “his last qualifying relative is set to age

out in January of next year, so he may not be eligible in five months.” R. at 175.

Hernandez’s counsel confirmed “the delay in this case [was] jeopardizing [Hernandez]

having qualifying relatives” because Karina would age out in January 2016 and asked the

IJ to “[s]chedule a hearing as soon as possible.” R. at 175-76. The IJ engaged in an

extensive discussion with Hernandez’s counsel about the reason for various delays in the

removal proceedings, with counsel attributing delays largely to “the context of the case,

the factual basis of the . . . case,” R. at 175, and the late-filed motion to pretermit. The IJ

did not have any availability before the age-out date, so he transferred the case to a

different IJ and set a merits hearing for December 2015; the IJ advised counsel to be

succinct in his presentation so the hearing did not carry over past the age-out date. In

November 2015, however, the final hearing was rescheduled to December 2016, after

Karina turned twenty-one. And in September 2016, it was reset to January 2017.

       By the time the hearing took place in 2017, Karina was no longer a qualifying

relative because she was twenty-one years old and thus not a “child” per the applicable


       3
       Hernandez affirmed that he stopped drinking alcohol after his 2001 conviction
and submitted statements of support from his church and community.
                                               4
statute. See § 1101(b)(1). The IJ found Hernandez to be ineligible for cancellation of

removal per In re Isidro-Zamorano, 25 I. & N. Dec. 829 (BIA 2012),4 but granted

voluntary departure in lieu of removal. Hernandez timely appealed to the BIA, but his

appeal was dismissed. The BIA found Hernandez to be “responsible for most of the

delay in the hearing and in not qualifying for cancellation of removal,” leaving only a

four-month window to consider his application. R. at 79. The BIA also rejected

Hernandez’s due process arguments, finding he “received a full and fair hearing.” Id.

Hernandez did not file a petition for review of that decision.

       Hernandez next filed a motion to reopen his removal proceedings with the BIA,

alleging ineffective assistance of his second counsel, Steven Paul, in violation of his due

process rights.5 Paul represented Hernandez in connection with his application for


       4
         Under that decision, an applicant for cancellation of removal who loses his
qualifying relationship before the IJ adjudicates his application on the merits is
ineligible for relief because an application for relief from removal is “continuing”
until finally decided. In re Isidro-Zamorano, 25 I. & N. Dec. at 831 & n.2; accord In
re Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006) (“[T]he issue of qualifying relatives
should properly be considered as of the time an application for cancellation of
removal is finally decided.”).
       5
         Hernandez submitted materials to comply with the criteria for making an
ineffective assistance of counsel claim:

       [A] motion based on a claim of ineffective assistance of counsel must be
       supported by (1) the aggrieved party’s affidavit setting forth the agreement
       that was entered into with former counsel and what counsel did or did not
       represent to the respondent in this regard; (2) evidence that former counsel
       was informed of the allegations and allowed the opportunity to respond;
       and (3) evidence the aggrieved party filed a complaint with appropriate
       disciplinary authorities, and if not, why not.

Mickeviciute v. INS, 327 F.3d 1159, 1161 n.2 (10th Cir. 2003) (citing In re Lozada,
                                             5
cancellation of removal from May 2015 through his final hearing in January 2017.

Hernandez faulted Paul for not understanding the applicable law as to qualifying relatives

and for not pushing for an earlier final hearing by filing “an emergency motion to

advance” or otherwise ensuring his continued eligibility for relief. R. at 23.

       The BIA denied the motion to reopen. It explained, “An alien making an

ineffective assistance of counsel claim must show not only that his attorney’s

performance was deficient but also ‘that he was prejudiced by his representative’s

performance.’” R. at 3 (quoting In re Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988)).

The BIA found the prejudice component to be lacking—concluding Hernandez “has not

meaningfully shown that he was prejudiced by ineffective assistance of former counsel,”

“[e]ven assuming, without deciding, that [Paul’s] behavior was somehow deficient.”

R. at 4. Deflecting blame from Paul, the BIA pointed out how Paul was retained three

years after the issuance of the Notice to Appear, at a time when Hernandez was not

actually eligible for cancellation of removal because of his conviction history; Paul then

obtained two continuances to successfully remove that barrier to eligibility and sought to

schedule a hearing “as soon as possible,” expressing his “concern . . . that the sole

qualifying relative would be ‘aging out’” in January 2016. Id. (internal quotation marks

omitted). The BIA also referenced the IJ’s “frustration” at Hernandez for the three-year

delay of the case. Id. Finally, the BIA acknowledged the role played by inadequate

resources at the immigration court:


19 I. & N. Dec. 637, 639 (BIA 1988)).

                                             6
      [W]hile it is unfortunate for the respondent, any delay in the final
      adjudication of his cancellation application (and the resultant “aging out” of
      his qualifying relative) appears to have been attributable to a lack of
      sufficient resources at the Immigration Court during the relevant time
      period, rather than any actions or inactions of the respondent’s former
      counsel.

Id.

      Hernandez filed a timely petition for review of the BIA’s decision denying his

motion to reopen.

                                    II.    Analysis

      The BIA’s denial of a motion to reopen is reviewable only for an abuse of

discretion. Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). The

Supreme Court has described the BIA’s discretion over motions to reopen as “broad.”

Kucana v. Holder, 558 U.S. 233, 242 (2010) (internal quotation marks omitted). An

alien challenging the denial of a motion to reopen “bears a heavy burden to show the

BIA abused its discretion,” Maatougui, 738 F.3d at 1239, because “motions to reopen

immigration cases are plainly disfavored,” id. (alteration and internal quotation marks

omitted). Furthermore, the BIA “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);

accord Maatougui, 738 F.3d at 1240. “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) (internal

quotation marks omitted).


                                            7
      Although we sympathize with Hernandez’s plight to the extent it stems in part

from congestion within the immigration court, we discern no abuse of discretion

under the circumstances presented here. As stated above, Hernandez’s petition for

review is timely only as to his challenge of the denial of the motion to reopen. And

his sole due-process argument within these parameters stems from an

ineffective-assistance-of-counsel claim.6 The BIA properly recited the relevant

standard: “Ineffective assistance of counsel in a deportation proceeding is a denial of

due process only if the proceeding was so fundamentally unfair that the alien was

prevented from reasonably presenting his case. One must show, moreover, that he

was prejudiced by his representative’s performance.” In re Lozada, 19 I. & N. Dec.

637, 638 (BIA 1988) (citations omitted).

      The record shows the removal proceedings dragged on for years due to a

combination of factors—including continuances requested by Hernandez’s counsel; the

government’s late-filed motion to pretermit based on Hernandez’s past DUI convictions;

Hernandez’s need to reopen one of those convictions to receive a sentence reduction and

thus be eligible for cancellation of removal; and the constraints imposed by a busy

immigration court system. Yet Hernandez now seeks to place the blame solely on an

attorney who did not enter an appearance until three years into the proceedings.

      The BIA’s decision was neither summary nor conclusory. In fact, it provided

a rational explanation for its conclusion that Paul’s performance was not ineffective


      6
       Hernandez does not assert a due-process violation due to congestion within
the immigration court in challenging the denial of the motion to reopen.
                                            8
and even achieved a positive result by removing a barrier to eligibility for cancellation

of removal. Furthermore, the BIA did not depart from established law or policies.

Against this backdrop, Hernandez has not satisfied the heavy burden he must

overcome to show an abuse of discretion. See Maatougui, 738 F.3d at 1239

(articulating the relevant standard).

                                   III.   Conclusion

      Because we conclude the BIA did not abuse its discretion in denying

Hernandez’s motion to reopen based on ineffective assistance of counsel, we deny

the petition for review.


                                             Entered for the Court


                                             Terrence L. O’Brien
                                             Circuit Judge




                                            9
