18-58

Joshue v. Barr

BIA

Straus, IJ

A023 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 

ELECTRONIC 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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 18th 4 day of September, two thousand twenty.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 PETER W. HALL,

9 MICHAEL H. PARK,

10 Circuit Judges.

11 _____________________________________

12

13 JENNIFA JOSHUE, AKA JENNIFER 

14 JOSHUA,

15 Petitioner,

16

17 v. 18-58

18 NAC

19 WILLIAM P. BARR, UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Paul B. Grotas, Esq., New York, 

25 NY.

26

27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

28 General; Stephen J. Flynn, 

29 Assistant Director; James A. 

30 Hurley, Trial Attorney, Office of 

31 Immigration Litigation, United 
2

1 States Department of Justice, 

2 Washington, DC.

3 UPON DUE CONSIDERATION of this petition for review of a 

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

5 ORDERED, ADJUDGED, AND DECREED that the petition for review 

6 is DENIED.

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

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

9 denying her second motion to reopen. In re Jennifa Joshue, 

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

11 parties’ familiarity with the underlying facts and procedural 

12 history in this case.

13 Because Joshue has been convicted of an aggravated 

14 felony, our review is limited to colorable constitutional 

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

16 (D); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–41 (2d Cir. 

17 2008). Although Joshue’s arguments implicate constitutional 

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

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

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

21 sua sponte.
3

1 An alien seeking to reopen proceedings may file only one 

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

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

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

5 2017 motion was her second motion to reopen and was untimely 

6 filed 15 years after her removal order. None of the statutory 

7 and regulatory exceptions to the time and number bars apply 

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

9 § 1003.2(c)(3)(i)–(iv). 

10 Although ineffective assistance of counsel may warrant 

11 an equitable exception to the time and number limitations, 

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

13 533 F.3d 127, 130–31 (2d Cir. 2008). Ineffective assistance 

14 may excuse the time and number limitations on a motion to 

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

16 ineffective [that it] impinged upon the fundamental fairness 

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

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

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

20 demonstrate “that competent counsel would have acted 

21 otherwise, and . . . that [s]he was prejudiced by h[er] 
4

1 counsel’s performance.” Id. at 131. To show prejudice, 

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

3 proceedings would have been . . . different” absent the 

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

5 (2d Cir. 2010). 

6 While Joshue argues that her counsel could have presented 

7 more arguments regarding her naturalization application (that 

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

9 felony ground of removal and that counsel could have pursued 

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

11 error in her original removal order or identify any relief 

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

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

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

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

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

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

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

19 grounds for denying reopening based on ineffective 
5

1 assistance.1 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 

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

3 make findings on issues the decision of which is unnecessary 

4 to the results they reach.”).

5 While the BIA has regulatory authority to reopen 

6 proceedings sua sponte despite the time and number bars, 8 

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

8 “entirely discretionary” determination, see Ali v. Gonzales, 

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

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

11 authority because it misperceived the legal background and 

12 thought, incorrectly, that a reopening would necessarily 

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

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

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

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

17 necessarily fail or misperceive the law.

1 Although the BIA did not discuss equitable tolling, it made 

dispositive findings that Joshue did not establish the 

prejudice required to state an ineffective assistance claim

which is a prerequisite to equitable tolling. See Rashid, 

533 F.3d at 130–31.
6

1 First, as discussed above, Joshue did not state an 

2 ineffective assistance claim. Second, the BIA acknowledged 

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

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

5 sua sponte on that basis because Joshue did not otherwise 

6 show that she had an approved visa petition as required to 

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

8 as a matter of discretion. This was not a misperception of 

9 the law. See Seepersad v. Sessions, 829 F.3d 121, 124–26 (2d 

10 Cir. 2018) (upholding requirement that lawful permanent 

11 resident apply to adjust status in connection with a waiver

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

13 eligible to adjust status, an applicant must be the 

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

15 U.S. 94, 104–05 (1988) (holding that BIA “may leap . . . over 

16 the two threshold concerns (prima facie case and new 

17 evidence/reasonable explanation), and simply [deny reopening 

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

19 grant of relief”). Although Joshue alleges that her visa 

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

21 the BIA’s decision. Thus, the BIA did not err in finding 
7

1 that she was not prima facie eligible for a waiver when it 

2 denied reopening. 

3 Moreover, the BIA reasonably observed that the waiver is 

4 discretionary and was unlikely to be granted given the 

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

6 that her conviction should not preclude a favorable exercise 

7 of discretion because the waiver is designed for criminal 

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

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

10 Joshue was unlikely to merit one as a matter of discretion. 

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

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

13 For the foregoing reasons, the petition for review is 

14 DENIED. All pending motions and applications are DENIED and 

15 stays VACATED.

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, 

18 Clerk of Court

19