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

                            FOR THE TENTH CIRCUIT                             June 4, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JUAN ANTONIO LOPEZ-GONZALEZ,

      Petitioner,

v.                                                    Nos. 17-9507 & 17-9533
                                                       (Petitions for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

      Juan Antonio Lopez-Gonzalez petitions the court to review two orders by the

Board of Immigration Appeals (BIA). We dismiss his petition to review the BIA’s

removal order for lack of jurisdiction, and we dismiss in part and deny in part his

petition to review the BIA’s order denying reconsideration and reopening.




      *
        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 This order and judgment is not binding precedent,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.
I. Background

      Lopez is a Mexican citizen who first entered the United States in 1986 and has

been a lawful permanent resident since 1992. In late 1993 or early 1994, when Lopez

was 15 years old, he committed a heinous offense. According to Lopez, his girlfriend

became pregnant and gave birth in a public bathroom. She encouraged Lopez to get

rid of the baby, so he killed it by backing over it with a truck.

      To his credit, Lopez later confessed to his religious leaders and parents, and

brought the crime to the attention of police. In 1996, he pled guilty to child abuse

causing death and was sentenced to ten years in prison, suspended on the condition

that he serve four years in the county jail and five years on probation.

      In 2012, more than a decade after Lopez completed his sentence, the

Department of Homeland Security (DHS) began removal proceedings. An

immigration judge (IJ) found Lopez to be removable under 8 U.S.C.

§ 1227(a)(2)(A)(i) because his crime was one of moral turpitude, carried a sentence

of more than a year, and was committed within five years after his 1992 admission to

the United States. Nevertheless, the IJ later granted Lopez cancellation of removal

under 8 U.S.C. § 1229b(a).1 Despite the severity of the offense, the IJ exercised

discretion in canceling removal because: 1) the crime occurred decades ago, 2) it may

not have been discovered if Lopez had not come forward and confessed, 3) Lopez


      1
        That section allows cancellation when an alien has been a lawful permanent
resident for five years, has lived in the country continuously for seven years after
admission, and has not been convicted of an aggravated felony. See 8 U.S.C.
§ 1229b(a).
                                            2
pled guilty and had successfully completed his sentence, 4) he had committed no

crimes since (except minor traffic violations), 5) he was employed, and 6) his

immediate family members were United States citizens.

      On appeal by the DHS, the BIA vacated the IJ’s decision and ordered Lopez

removed from the country. It recognized the positive factors the IJ discussed, but

concluded Lopez did not deserve a favorable exercise of discretion because he had

committed such a serious offense. Lopez moved to reconsider and reopen the

proceedings, but the BIA denied his request.

      Lopez now petitions this court to review the BIA’s order of removal and its

subsequent order denying reconsideration and reopening.

II. Removal Order

      He challenges two aspects of the BIA’s order of removal, claiming it:

           Reviewed the IJ’s findings of fact de novo and engaged in its own
            factfinding, contrary to regulations governing its standard of review. See
            8 C.F.R. § 1003.1(d)(3)(i), (iv) (stating the BIA will review the IJ’s
            findings of fact for clear error and “will not engage in factfinding in the
            course of deciding appeals”).

             Misapplied its own precedent. Specifically, he says, it erred by relying on
              In re Jean, 23 I. & N. Dec. 373 (AG 2002), because that case involved a
              different form of relief (adjustment of status rather than cancellation of
              removal) and did not create a per se rule that relief cannot be granted when
              an alien’s crime results in death.

      As Lopez recognizes, we generally lack jurisdiction to review the BIA’s

discretionary decision to deny cancellation of removal under § 1229b(a), see 8 U.S.C.

§ 1252(a)(2)(B)(i); Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009).



                                            3
However, we retain jurisdiction to review “constitutional claims or questions of law.”

§ 1252(a)(2)(D). According to Lopez, his claims fall within this exception.

      According to Lopez, his claims “implicate[] his due process right,” and he

frames his argument in due process terms. 17-9507 Aplt. Opening Br. at 19, 22-23.

We rejected a similar argument in Arambula-Medina v. Holder. In that case, the

petitioner argued the BIA’s decision regarding cancellation of removal violated due

process because, among other things, it failed to apply governing regulations or

controlling BIA precedent. Arambula-Medina, 572 F.3d at 828. The petitioner’s

challenge failed to invoke due process; we explained:

      In order to make out a claim for a violation of due process, a claimant
      must have a liberty or property interest in the outcome of the
      proceedings. But in immigration proceedings, a petitioner has no liberty
      or property interest in obtaining purely discretionary relief. Because
      cancellation of removal is a form of discretionary relief, [a] petitioner
      cannot raise a due process challenge to the denial of his application for
      cancellation of removal. Because aliens do not have a constitutional
      right to enter or remain in the United States, the only protections
      afforded are the minimal procedural due process rights for an
      opportunity to be heard at a meaningful time and in a meaningful
      manner.

Id. (citations, alterations, and internal quotation marks omitted). Lopez does not

claim to have been denied a meaningful hearing, so he has not raised a constitutional

claim under § 1252(a)(2)(D).

      While it is unclear, Lopez may be claiming to have reviewable questions of

law. But that is a very narrow slice of the pie; we have said the term “‘questions of

law’ refers to those issues that were historically reviewable on habeas—constitutional

and statutory-construction questions, not discretionary or factual questions.” Diallo

                                           4
v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (internal quotation marks

omitted). And we have held that § 1252(a)(2)(D) grants “jurisdiction to review a

narrow category of issues regarding statutory construction.” Id. (internal quotation

marks omitted). Since Lopez does not argue that his claims require statutory

construction or that our jurisdiction under § 1252(a)(2)(D) is broader than we stated

in Diallo, we are hard pressed to see any reviewable “constitutional claims or

questions of law” within the meaning of § 1252(a)(2)(D).

      That being so, we lack jurisdiction to review the BIA’s discretionary decision

to deny cancellation of removal. See § 1252(a)(2)(B)(i). Accordingly, Lopez’s

petition to review the BIA’s removal order must be dismissed.

III. Denial of Motion to Reconsider and Reopen

      Lopez also says the BIA abused its discretion in not reconsidering its decision

and reopening his case because: (1) new evidence supported cancellation of removal,

(2) his former attorneys were ineffective, (3) he was eligible for re-adjustment of

status and waiver of inadmissibility, and (4) he was entitled to protection under the

Convention Against Torture (CAT). We lack jurisdiction to review some of his

arguments and see no abuse of discretion in those we can review.

      A. Standard of Review and Relevant Law

      The purpose of a motion to reconsider is to call the BIA’s attention to errors of

fact or law in its decision. Mahamat v. Gonzales, 430 F.3d 1281, 1283 n.3 (10th Cir.

2005). In contrast, a motion to reopen seeks to present new evidence the petitioner

could not have previously presented. Id. We review rulings on both motions for

                                           5
abuse of discretion. Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015)

(motion to reconsider); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004)

(motion to reopen).

      To merit reopening, an alien must bring new evidence that “would likely

change the result in the case.” Maatougui v. Holder, 738 F.3d 1230, 1240 (10th Cir.

2013) (internal quotation marks omitted). As relevant here, the BIA may deny a

motion to reopen when the alien has not established a prima facie case for relief or, if

the relief sought is discretionary, when the alien “would not be entitled to the

discretionary grant of relief.” INS v. Abudu, 485 U.S. 94, 104-05 (1988).

      We generally have jurisdiction to review the denial of a motion to reopen. See

Infanzon, 386 F.3d at 1361; Kucana v. Holder, 558 U.S. 233, 249 (2010) (“[Section]

1252(a)(2)(b)(ii) does not proscribe judicial review of denials of motions to

reopen.”). But an alien cannot “indirectly obtain judicial review of a discretionary

ruling that is not directly reviewable.” Alzainati v. Holder, 568 F.3d 844, 848

(10th Cir. 2009). So when the BIA makes a discretionary decision to deny relief

under one of the enumerated provisions in § 1252(a)(2)(B)(i) and later denies a

motion to reopen because the alien has still not shown relief is warranted, we lack

jurisdiction to review its decision. See Alzainati, 568 F.3d at 849. The only

exception to this jurisdictional bar is for “constitutional claims or questions of law.”

§ 1252(a)(2)(D).




                                            6
      B. New Evidence Supporting Cancellation of Removal

      Lopez asked the BIA to reconsider its ruling and reopen proceedings for

further consideration of his request for cancellation of removal under 8 U.S.C.

§ 1229b(a). As in his petition to review the BIA’s removal order, Lopez argued the

BIA had engaged in improper factfinding and misapplied its own precedent. He also

argued that his recent marriage to a United States citizen was new evidence

supporting cancellation of removal. The BIA rejected these arguments. It saw no

legal error in its ruling and concluded Lopez’s marriage to a United States citizen did

not entitle him to a favorable discretionary decision.

      We lack jurisdiction to review this part of the BIA’s decision. As we

explained above, Lopez has not shown the BIA’s rejection of his legal challenge

presents a reviewable constitutional issue or question of law within the meaning of

§ 1252(a)(2)(D). Nor can we review the BIA’s discretionary decision that, despite

his marriage, Lopez had still not shown he warranted cancellation of removal under

§ 1229b(a). See § 1252(a)(2)(B)(i); Alzainati, 568 F.3d at 849.

      Lopez also argues that, as a procedural matter, the BIA should have remanded

the case so the IJ could consider his request for cancellation in light of the new

evidence. He is not entitled to the extra process he seeks. The BIA has the ultimate

authority to decide, as a matter of discretion, whether Lopez was entitled to the relief

he sought, see 8 C.F.R. § 1003.1(d)(3)(ii), and it could properly deny his request to

reopen on this basis, see Abudu, 485 U.S. at 105 (the BIA may deny a motion to

reopen when the relief sought is discretionary and the alien “would not be entitled to

                                           7
the discretionary grant of relief”). Remand was not required. See Wood v. Mukasey,

516 F.3d 564, 569 (7th Cir. 2008) (“Provided the BIA can do so without additional

fact-finding . . . we see no reason why it must avoid issues of discretion in an appeal

because they were never reached by the IJ.”).

      C. Ineffective Assistance of Counsel

      Lopez claims his former attorneys were ineffective because they failed to

request voluntary departure as an alternate form of relief and failed to appeal the IJ’s

removability determination. The BIA did not abuse its discretion by rejecting the

argument.

      Although an alien has no Sixth Amendment right to counsel in removal

proceedings, he has “a Fifth Amendment right to a fundamentally fair proceeding.”

Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003). To prove a Fifth

Amendment violation based on ineffective assistance of counsel, an alien must show

(1) his attorney’s performance was deficient and (2) he was denied a fundamentally

fair proceeding as a result. Id. To prove the second prong—prejudice—the alien

must show there is a reasonable likelihood that, but for his attorney’s errors, he

would have obtained the relief he sought. United States v. Aguirre-Tello, 353 F.3d

1199, 1209 (10th Cir. 2004) (en banc).

      Assuming Lopez’s attorneys should have pursued voluntary departure, the BIA

concluded he failed to prove prejudice. Voluntary departure is a discretionary form

of relief, and since the BIA had determined it was unwarranted, it concluded there



                                           8
was no reasonable likelihood it would have been allowed even if his attorneys had

made the request.

       The BIA did not abuse its discretion. Voluntary departure is a privilege left to

the attorney general’s discretion. Becerra-Jimenez v. INS, 829 F.2d 996, 999

(10th Cir. 1987). This is true even when an alien is statutorily eligible for it. See id.

All that is required is a rational explanation, which the BIA provided to Lopez. See

Infanzon, 386 F.3d at 1362 (“The BIA abuses its discretion when its decision

provides no rational explanation . . . .”).

       The BIA also rejected Lopez’s argument that his prior attorneys should have

appealed from the IJ’s determination that he was removable under 8 U.S.C.

§ 1227(a)(2)(A)(i). Since the BIA agreed he was removable under that section, it

concluded any failure to take an appeal on that issue did not result in prejudice to

him. Here, Lopez claims he was not required to prove prejudice, but even if he was,

he could have successfully appealed the IJ’s decision. We disagree.

       Citing Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000),

Lopez thinks he was not required to prove prejudice because his attorneys denied him

the opportunity to appeal. The Ninth Circuit presumes prejudice when counsel’s

error entirely deprived an alien of an appellate proceeding. Id. at 1045. Assuming

such a presumption is proper, it is rebuttable, and the Ninth Circuit has refused to

find prejudice when the petitioner failed to show plausible grounds for relief on

appeal. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003). Were we to



                                              9
presume prejudice, Lopez would still be required to show how he could have

succeeded on appeal.

      An alien is removable under § 1227(a)(2)(A)(i) if he “is convicted of a crime

involving moral turpitude committed within five years . . . after the date of

admission, and” it is “a crime for which a sentence of one year or longer may be

imposed.” Lopez says a successful appeal could have been taken from the IJ’s

findings that (1) he was convicted of a crime involving moral turpitude and (2) he

committed the crime within five years after his admission. Saying so is easy;

carrying the day is not.

      In his opening brief, Lopez argues his offense was “not necessarily or

categorically a [crime involving moral turpitude] in this Circuit” and he “could have

prevailed on his claim that the child abuse crime was not a [crime involving moral

turpitude].”2 17-9533 Aplt. Opening Br. at 23-24 & n.9. But he does not now

explain why—or even definitively state that—his offense was not a crime involving

moral turpitude. Nor does the opening brief explain how he could have prevailed on

that issue on appeal. He offers more detail in his reply brief, which goes far beyond

his arguments to the BIA. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of

administrative remedies); Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir.

2007) (“[W]e generally assert jurisdiction only over those arguments that a petitioner

properly presents to the BIA.”). Moreover, we generally refuse to consider

      2
        Lopez made the same conclusory argument to the BIA. See 17-9533 R. Vol.
1 at 244-45 & n.12. And although he refers to the categorical approach, he does not
specifically argue it applies.
                                           10
arguments “raised for the first time in a reply brief.” McKenzie v. USCIS, 761 F.3d

1149, 1154-55 (10th Cir. 2014). We see no reason to depart from customary practice

in this case.

       Lopez also contends he could have prevailed in an appeal from the IJ’s finding

that his offense occurred within five years after his admission. That is a tough row to

hoe. According to the amended information and Lopez’s plea agreement, he

committed the offense sometime between December 1993 and February 1994. This

was more than five years after Lopez was first admitted as a tourist in 1986. But the

government presented a copy of an immigrant visa showing Lopez was admitted as a

lawful permanent resident on June 10, 1992, and argued this was the relevant date of

admission under Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011). The IJ agreed

and concluded Lopez committed his offense within five years after his 1992

admission.

       In Alyazji, the BIA recognized “some aliens are admitted to the United States

more than once during their lives.” 25 I. & N. Dec. at 400. It determined that, for

purposes of § 1227(a)(2)(A)(i), the relevant date of admission is not the date of the

alien’s first admission, but “the date of the admission by virtue of which the alien

was present in the United States when he committed his crime.” Id. at 406. As a

precedential decision, both the IJ and BIA were bound to follow Alyazji. See

8 C.F.R. § 1003.1(g).

       Lopez does not explain why his 1992 admission as a lawful permanent

resident, which was his classification when he committed the offense, is not the

                                          11
“admission pursuant to which he was then in the United States,” Alyazji, 25 I. & N.

Dec. at 406. As a result, he has not shown he could have successfully appealed the

IJ’s finding that he committed the offense within five years after his admission.

      Because Lopez has not shown a reasonable likelihood of obtaining voluntary

departure or any likelihood of success in an appeal from the IJ’s removability

determination, the BIA did not abuse its discretion by denying his motion to reopen

based on ineffective assistance of counsel.

      D. Adjustment of Status and Waiver of Inadmissibility

      Lopez argues the BIA erred by denying his motion to reopen for adjustment of

status and waiver of inadmissibility, but we lack jurisdiction to review the BIA’s

discretionary decision that he was not entitled to these forms of relief.

      Lopez sought to reopen so he could pursue adjustment of status under 8 U.S.C.

§ 1255(a) and waiver of inadmissibility under 8 U.S.C. § 1182(h). He argued he was

now eligible for both forms of relief because he had married a United States citizen

who filed a visa petition on his behalf. As the BIA recognized, adjustment of status

and waiver of inadmissibility are discretionary forms of relief. See Schroeck v.

Gonzales, 429 F.3d 947, 949 (10th Cir. 2005). It denied his request, stating “we

already have determined that [Lopez] is not entitled to a favorable exercise of

discretion, and the new evidence included in [his] motion is not sufficient to alter this

conclusion.” 17-9533 R. Vol. 1 at 4.

      Lopez argues the BIA abused its discretion and denied him due process. He

contends that, given the strength of his claim for adjustment and waiver, “under no

                                           12
reasonable circumstance could the Board have reasonably concluded that [he] failed

to present a prima facie case.” 17-9533 Aplt. Opening Br. at 37 (emphasis omitted).

But the BIA did not find that Lopez failed to establish a prima facie case—it

concluded he did not warrant a favorable exercise of discretion. It does not appear

that the BIA failed to consider the new evidence Lopez provided; we lack jurisdiction

to review what was clearly the BIA’s discretionary decision to deny relief under

§ 1255(a) and § 1182(h). See § 1252(a)(2)(B)(i); cf. Alzainati, 568 F.3d at 850 & n.7

(concluding “our jurisdiction to review the BIA’s denial of [a] motion to reopen is

constrained by § 1252(a)(2)(B)(i),” but leaving open whether we can review the

denial of a motion to reopen on the ground that the new evidence would not warrant a

favorable exercise of discretion when there has been no underlying discretionary

decision denying relief).

      Recognizing our jurisdiction to review “constitutional claims or questions of

law,” § 1252(a)(2)(D), Lopez frames his argument in terms of due process. But his

claim is that the BIA improperly weighed the equities in his case. This is not a

“constitutional claim capable of avoiding the jurisdictional bar.” Alzainati, 568 F.3d

at 850-51 (“[A]n alien does not present a colorable constitutional claim capable of

avoiding the jurisdictional bar by arguing that the evidence was incorrectly weighed,

insufficiently considered, or supports a different outcome.” (internal quotation marks

omitted)).

      Lopez also claims the BIA’s decision was based on an incorrect interpretation

of In re Jean, 23 I. & N. Dec. 373 (AG 2002). But the BIA did not cite Jean during

                                          13
its discussion of this issue, nor did it suggest the case governed its analysis.

Nevertheless, Lopez argues the BIA “should have remanded [the] case to the IJ to

take the first stab at applying Jean.” 17-9533 Aplt. Opening Br. at 41. But as we

explained above, remand was not required because the BIA had authority make the

discretionary decision to deny relief, see 8 C.F.R. § 1003.1(d)(3)(ii), and it could

deny Lopez’s motion to reopen on that basis, see Abudu, 485 U.S. at 105.

      E. Protection Under the CAT

      Lopez also wanted to reopen so he could seek protection under the CAT. This

protection is available when an alien shows he will more likely than not be tortured

by, at the instigation of, or with the acquiescence of, a public official in the country

of removal. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Karki v. Holder, 715 F.3d

792, 806 (10th Cir. 2013). In support of his request, Lopez cited “the violence,

killings, kidnappings, and police corruption that occur [in Mexico] on a daily basis.”

17-9533 R. Vol. 1 at 258. He also claimed his uncles told him “people who return to

Mexico from the United States are often specifically targeted and taken advantage of

by extortionists and members of organized crime” and “there is no government

control over these organized criminals.” Id. The BIA concluded Lopez failed to

establish prima facie eligibility for protection under the CAT because his

“generalized information regarding conditions in Mexico” did not “show that he has a

reasonable likelihood of establishing that it is more likely than not that he will face

torture at the hands of or with the acquiescence of a public official.” Id. at 5. It did

not abuse its discretion.

                                            14
      An alien “demonstrates prima facie eligibility for relief where the evidence

reveals a reasonable likelihood that the statutory requirements for relief have been

satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 1308 (BIA 2000), overruled on other

grounds by Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir. 2003). Lopez claims

the Mexican government is unable to control organized crime, but “[a] government

does not acquiesce in the torture of its citizens merely because it is aware of torture

but powerless to stop it.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007)

(internal quotation marks omitted). Rather, there must be evidence suggesting the

government “would likely turn a blind eye to his torture,” Karki, 715 F.3d at 807; see

Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (“[W]illful blindness

suffices to prove acquiescence.” (internal quotation marks omitted)). Lopez points to

no such evidence.

      In the absence of any evidence showing the Mexican government would

acquiesce to his torture, Lopez failed to establish a prima facie case for relief under

the CAT. The BIA did not abuse its discretion by refusing to reopen on this ground.

See Abudu, 485 U.S. at 104 (the BIA may deny a motion to reopen when the alien has

not established a prima facie case for the relief sought).




                                           15
IV. Conclusion

      We dismiss Lopez’s petition to review the BIA’s removal order for lack of

jurisdiction. We dismiss in part and deny in part his petition to review the BIA’s

order denying reconsideration and reopening.


                                           Entered for the Court


                                           Terrence L. O’Brien
                                           Circuit Judge




                                          16
