[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 13115

Non

- Argument Calendar

____________________

MARIA LETICIA GONZALEZ

- ALONZO, NORMAN MIGUEL FLORES

- GONZALEZ, JORGE LUIS FLORES

- GONZALEZ, ARIEL SAID FLORES

- GONZALEZ,
Petitioners,

versus U.S. ATTORNEY GENERAL,

Respondent. USCA11 Case: 21-13115 Date Filed: 07/07/2022 Page: 1 of 62 Opinion of the Court 21

- 13115

____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A202

- 027

- 102

____________________
Before JORDAN, NEWSOM, and EDMONDSON, Circuit Judges.

PER CURIAM:
Maria Gonzalez

- Alonzo and her three children, Norman, Jorge, and Ariel (“Petitioners”), petition for review of the order by the Board of Immigration Appeals (“BIA”) denying Petitioners’ claim of ineffective assistance of counsel. 1 No reversible error has been shown; we deny the petition. Petitioners, natives and citizens of Honduras, entered the United States in June 2014, without admission or inspec tion. Petitioners were charged as removable and later conceded removability. In September 2016, Petitioners applied for asylum, for withholding of removal, and for relief under the Convention Against

1 In the same order, the BIA also affirmed the Immigration Judge’s decision denying Petitioners’ applications for asylum, for withholding of removal, andfor relief under the Convention Against Torture. On appeal, Petitioners abandon expressly any challenge to the IJ’s and the BIA’s merits

- based denial of their applications for relief. USCA11 Case: 21-13115 Date Filed: 07/07/2022 Page: 2 of 621

- 13115 Opinion of the Court 3

Torture (“CAT”). 2 Petitioners sought relief based o n membershipin a particular social group identified as “Honduran mother of millennial boys” or “Honduran mother of millennial boys who have been solicited for recruitment by criminal organizations.” Briefly stated, Petitioners sought relief based on the ir fear offuture persecution by gang members who wanted to recruit Maria’s two teenaged sons, Norman and Jorge. At the removal hearing, Maria testified that the gang tried to recruit Norman and Jorge to deliver packages of drugs. Norman then testified t hat he and Jorge were targeted by gang members because

-- as members of the Church of Jesus Christ of Latter

- Day Saintes

-- he and his brother dressed nicely and would not be stopped by the police. At the end of the hearing, Petitioners’ lawyer moved to a mend the asylum applications filed by Norman and by Jorge to include “religion” as a basis for persecution. The Immigration Judge (“IJ”) granted the motion. The IJ denied Petitioners’ applications for relief. The IJ found no nexus between Petitioners’ mistreatment by gang members and a protected ground. The IJ explained that the gang members wanted to recruit Norman and Jorge to enhance their ranks and to further the gang’s criminal enterprise. That Norman and

2 The September 2016 application listed Maria as the lead petitioner and listed Norman, Jorge, and Ariel as riders. Norman, Jorge, and Ariel later filed their own individua l applications for asylum, for withholding of removal, and for CAT relief. USCA11 Case: 21-13115 Date Filed: 07/07/2022 Page: 3 of 64 Opinion of the Court 21

- 13115
Jorge were church members and were dresse d in a certain way because they were going to church was “incidental” to the gang’s motivations, not the “main reason or even one of the main reasons” why the gang targeted Norman and Jorge.Petitioners appealed to the BIA. In pertinent part, Petitioner s argued that their lawyer rendered ineffective assistance by failing to file an asylum application within the one

- year deadline and by failing to present adequately Petitioners’ religion

- based claims for relief. The BIA adopted and affirmed the IJ’s dec ision denying Petitioners asylum, withholding of removal, and CAT relief. The BIA then rejected Petitioners’ ineffective

- assistance

- of

- counsel claim.The BIA determined that Petitioners failed to show prejudice resulting from their lawyer’s purported err ors. We review only the decision of the BIA, except to the extent the BIA adopts expressly the IJ’s decision. See Gonzalez v. U.S. Att’y Gen ., 820 F.3d 399, 403 (11th Cir. 2016). We review de novo the BIA’s legal conclusions. See id . We review fact d eterminations under the “highly deferential substantial evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” See Adefemi v. Ashcroft , 386 F. 3d 1022, 1026

- 27 (11th Cir. 2004) ( en banc ). While applicants in civil removal proceedings have no Sixth Amendment right to counsel, applicants who have retained USCA11 Case: 21-13115 Date Filed: 07/07/2022 Page: 4 of 621

- 13115 Opinion of the Court 5

counsel are entitled to effective assistance of that counsel under the Fifth Amendment’s Due Process Clause. Dakane v. U.S. Att’y Gen ., 399 F.3d 1269, 1273 (11th Cir. 2004). To establish ineffectiveassistance of counsel, an applicant must show that his lawyer’s performance “was deficient to the point that it impinged upon the fundamental fairn ess of the hearing such that the [applicant] was unable to reasonably present his . . . case.” Id . at 1274.The applicant must also demonstrate that his lawyer’s deficient performance prejudiced his case. Id. To demonstrate prejudice, the applicant mu st show that his lawyer’s performance was “so inadequate that there is a reasonable probability that but for the attorney’s error, the outcome of the proceedings would have been different.” Sow v. U.S. Att’y Gen ., 949 F.3d 1312, 1318 (11th Cir. 2020); Dak ane, 399 F.3d at 1274. An applicant can establish prejudice by making a prima facie showing that he was eligible for the relief sought. See Dakane , 399 F.3d at 1274

- 75.The record supports the BIA’s determination that Petitioners failed to show that th ey were prejudiced by their lawyer’s failure to file timely an asylum application. Although the IJ questioned the timeliness of Petitioners’ asylum application, the IJ made nofinding on timeliness. Instead, the IJ heard testimony and considered the evid ence introduced in support of Petitioners’ asylum claim. The IJ then denied Petitioners’ asylum claim on the merits.Petitioners also contend that their lawyer performed deficiently by failing to assert Petitioners’ religion

- based claim earlier in the r emoval proceedings. As a result, Petitioners say their USCA11 Case: 21-13115 Date Filed: 07/07/2022 Page: 5 of 66 Opinion of the Court 21

- 13115
lawyer failed to develop adequately the evidence and argumentsupporting that claim. Petitioners, however, have identified no additional evidence or testimony that (if introduced) would have likely c hanged the IJ’s determination that the gang’s recruitment efforts were not motivated by Petitioners’ religion. The recordsupports the BIA’s determination that Petitioners showed no reasonable probability that

-- but for their lawyer’s alleged deficient
p erformance

-- they would have prevailed on their religion

- based asylum claim. Petitioners have demonstrated no prejudice resulting from their lawyer’s alleged deficient performance. We deny the petition.
PETITION DENIED. USCA11 Case: 21-13115 Date Filed: 07/07/2022 Page: 6 of 6