18

- 58 Joshue v. Barr BIA Straus , IJ A 023 310 562



### 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**  **ELE CTRONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A PARTY CITING TO A SUMMARY**  **ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood**  **Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on th e 1**  **8 th**  **da y of**  **September , two thousand**  **twenty .**  4 5 **PRESENT:** 6 **PIERRE N. LEVAL ,**  7 **PETER W. HALL ,**  8 **MICHAEL H. PARK ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **JENNIFA JOSHUE, AKA JENNIFER** 13 **JOSHUA,** 14 **Petitioner ,**  15 16

**v. 18** 

**- 58**  17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES**  19 **ATTORNEY GENERAL,** 20 **Respondent .**  21

**_____________________________________** 22 23 **FOR PETITIONER:** Paul B. Grotas, Esq. , New York , 24 NY

. 25 26 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 27 General ; Stephen J. Flynn , 28 Assistant Director; James A. 29 Hurley , Trial Attorney, Office of 30 Immigration Litigation, United 312 States Department of Justice, 1 Washington, DC. 2
UPON DUE CONSIDERATION of this petition for review of a 3

Board of Immigration Appeals (“BIA”) decision, it is hereby 4

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 5

is DENIED

. 6

Petitioner Jennifa Joshue , a native and citizen of St. 7

Lucia , seeks review of a January 4, 2018 , decision of the BIA 8

denying her second motion to reopen

. In re Jennifa Joshue , 9

No. A 023 310 562 (B.I.A. Jan. 4, 2018 ). We assume the 10

parties’ familiarity with the underlying facts and procedural 11

history in this case. 12

Because Joshue has been convicted of an aggravated 13

felony, our review is limited to colorable constitutional 14

claims and questions of law. See 8 U.S.C. 1252(a)(2)(C), 15

(D); Barco

- Sandoval v. Gonzales , 516 F.3d 35, 39

– 41 (2d Cir. 16

2008). Although Joshue’s arguments implicate constitutional 17

issues and questions of law, none of her challenges to the 18

time and number limitation on her motion have merit. And we 19

lack jurisdiction to review the BIA’s decision not to reopen 20

sua sponte. 213 An alien seeking to reopen proceedings may file only one 1

motion to reopen no later than 90 days after the final 2

administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 3

8 C.F.R. § 1003.2(c)(2). There is no dispute that Joshue’s 4

2017 motion was her second motio n to reopen and was untimely 5
filed 15 years after her removal order

. None of the statutory 6

and regulatory exceptions to the time and number bars apply 7

here. S ee 8 U.S.C. § 1229a(c)(7)(C)(ii) , (iv) ; 8 C.F.R. 8

§ 1003.2(c)(3)(i)

– (iv)

. 9

A lthough ineffective assistance of counsel may warrant 10

an equitable exception to the time and number limitations, 11

Joshue failed to state such a claim. See R ashid v. Mukasey , 12

533 F.3d 127, 130

– 31 (2d Cir. 2008). Ineffective assistance 13

may excuse the time and numb er limitations on a motion to 14

reopen if a movant shows that “ counsel’s performance was so 15

ineffective [that it] impinged upon the fundamental fairness 16

of the hearing in violation of the fifth amendment of the due 17

process clause.” Id. at 130 (internal quot ation marks and 18

citation omitted). To do so, Joshue was required to 19

demonstrate “that competent counsel would have acted 20

otherwise, and . . . that [s]he was prejudiced by h[er] 214 counsel’s performance.” Id. at 131. To show prejudice, 1

Joshue had to demonstrate that “ the outcome of h[er] removal 2

proceedings would have been

. . . different” absent the 3

alleged deficiencies. Debeatham v. Holder , 602 F.3d 481, 486 4

(2d Cir. 2010). 5
While Joshue argues that her counsel c ould have presented 6

more arguments regarding her naturalization application (that 7

had been denied prior to the hearing) and the aggravated 8

felony ground of removal and that counsel could have pursued 9

other forms of relief, she does not argue or establish a ny 10

error in her original removal order or identify any relief 11

that she could have applied for. Thus, she did not 12

demonstrate prejudice. Id. ; s ee also Rabiu v. INS , 41 F.3d 13

879, 882 (2d Cir. 1994) ( T o demonstrate prejudice, the 14

petitioner “must make a prima facie showing that he would 15

have been eligible for the relief and that he could have made 16

a strong showing in support of his application.” ). Because 17

prejudice is a requirement, we do not reach the BIA’s other 18

grounds for denying reopening based on ineffective 195 assistance. 1 See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) 1

(“As a general rule courts and agencies are not required to 2

make findings on issues the decision of which is unnecessary 3

to the results they reach.”). 4

While the BIA has regulatory authority to reopen 5
proceedings sua sponte despite the time and number bars , 8 6

C.F.R. § 1003.2(a) , we lack jurisdiction to review this 7

“entirely discretionary” determination , s ee Ali v. Gonzales , 8

448 F.3d 515, 518 (2d Cir. 2006). There is one exception : 9

“where the [BIA] may have declined to exercise its sua sponte 10

authority because it misperceived the legal background and 11

thought, incorrectly, that a reopening would necessarily 12

fail, remand to t he [BIA] for reconsideration in view of the 13

correct law is appropriate.” Mahmood v. Holder , 570 F.3d 14

466, 469 (2d Cir. 2009). However, this exception does not 15

apply here because the BIA did not state that reopening would 16

necessarily fail or misperceive t he law

. 17

1 Although the BIA did not discuss equitable tolling, it m ade dispositive findings that Joshue did not establish the prejudice require d to state a n ineffective assistance claim which is a prerequisite to equitable tolling. See Rashid , 533 F.3d at 130

– 31

.6 First, a s discussed above, Joshue did not state an 1

ineffective assistance claim. Second, the BIA acknowledged 2

that Joshue identified a change in the law as set out in Husic 3

v. Holder , 776 F.3d 59 (2d Cir. 2015) , but declined to reopen 4

sua sponte on that basis because Joshue did not otherwise 5
show that she had an approved visa petition as required to 6

adjust status or that she would merit a waiver or adjustment 7

as a matter of discretion. This was not a misperceptio n of 8

the law. See Seepersad v. Sessions , 829 F.3d 121, 124

– 26 (2d 9

Cir. 2018) ( upholding requirement that lawful permanent 10

resident apply to adjust status in connection with a waiver 11

under 8 U.S.C. § 1182(h) ); see also 8 U.S.C. § 1255(a) (to be 12

eligible to adjust status, an applicant must be the 13

beneficiary of a current visa petition) ; I NS v. Abudu , 485 14

U.S. 94, 104

– 05 (1988) (holding that BIA “may leap . . . over 15

the two threshold concerns (prima facie case and new 16

evidence/reasonable explanation), and sim ply [deny reopening 17

when] the movant would not be entitled to the discretionary 18

grant of relief”)

. A lthough Joshue alleges that her visa 19

petition has since been approved , it was not at the time of 20

the BIA’s decision. Thus, the BIA did not err in finding 217 that she was not prima facie eligible for a waiver when it 1

denied reopening. 2

Moreover, the BIA reasonably observed that the waiver is 3

discretionary and was unlikely to be granted given the 4

severity of Joshue’s conviction . Despite Joshue’s argument 5

that her conviction should not preclude a favorable exercise 6

of discretion because the waiver is designed for criminal 7

aliens, the BIA did not misperceive the law because it did 8

not conclude that a waiver was unavailable, but rather, that 9

Joshue was unlikely t o merit one as a matter of discretion

. 10

We lack jurisdiction to review further the BIA’s decision not 11

to reopen sua sponte. See Ali , 448 F.3d at 518. 12

For the foregoing reasons, the petition for review is 13

DENIED. All pending motions and applications are DENIED and 14

stays VACATED. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe, 17 Clerk of Court 18 19