UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ GREGORIO HERNANDEZ, Petitioner,

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

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before McHUGH , BALDOCK , and O’BRIEN , Circuit Judges.

________________ _________________ The Department of Homeland Secu rity (DHS) initiated removal pro ceedings against Gregorio Hernandez, who e ntered the United States illeg ally from Mexico. Hernandez conceded removability but sought cancellation of remo val under § 240A(b)(1)

 In accordance with Rule 43(c)(2) of the Federal Rules of Appel late Procedure, William P. Barr is sub stituted for Jefferson B. Sess ions, III, as the respondent in this action.

** After examining the briefs and appellate record, this panel ha s 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 ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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. FILED United States Court of Appeals Tenth Circuit 

### April 22, 2019
Elisabeth A. Shumaker Clerk of Court2 of the Immigration and Nationa lity Act (INA), 8 U .S.C. § 1229b( b)(1). An Immigration Judge (IJ) found Herna ndez to be ineligib le for cancellation of removal because he did not have a qualifying relative at t he time of his final hearing , see § 1229b(b)(1)(D), and the Board of Immigration Appeal s (BIA) dismissed his appeal. H ernandez then moved to reopen his removal pr oceedings, alleging ineffective assistance by his former counsel. The BIA denied his motion. H ernandez 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. § 12 52, we deny the petition.
I. Background Gregorio Hernandez, a native a nd citizen of Mexico, entered the United States illegally in 1987. In 2012, DHS c harged him with removability as an alien present in the United States without being adm itted or paroled. Hernandez con ceded removability but sought cancellation of removal under § 1229b(b)(1). Relevant h ere, that provision allows cancellation of removal when an a lien establishes “that removal would result in

1 Hernandez also purports to challenge the BIA’s earlier decisio n 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 late r than 30 days after the date of the final order of removal.”). The filing of a mo tion to reopen does not affect t he finality of the underlying removal order; each order is separate and appealable. See Stone v. INS , 514 U.S. 386, 394 (1995) (“[D]eportation orde rs are to be reviewed in a timel y fashion after issuance, irrespective of the later filing of a motion to r eopen or recon sider.”); see also id. at 405 (explaining Congress “envisioned two separate petitions filed t o review two separate final orders”).3 exceptional and extremely unusua l hardship to the alien’s . . . child, 2 who is a citizen of the United States.” § 1229b(b )(1)(D). Hernandez cited excepti onal and extremely unusual hardship to his youngest daughter Karina, a United Stat es citizen who has been diagnosed with major depressive disorder, anxiety disorder with panic symptoms, and fatty liver disease with complica tions due to emotional distres s. Karina was born in January 1995 and turned twe nty-one in Ja nuary 2016. Hernandez’s removal proceedings began in August 2012, when Kari na was seventeen years old. The IJ grant ed a few short continuances s o Hernandez could retain counsel and seek cancellation of removal. Hernandez submitted his application for cancellation of removal in Decemb er 2012. He di d not appear be fore an IJ again until a hearing in May 2015; by this tim e, he had secured new counsel, Steven Paul. The government moved to pretermit Hern andez’s application based on his conviction history. It argued his felony DUI convic tion in 2001 and several additio nal DUI convictions resulted in five years or more of aggregate sentences to confin ement, 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 hear ing in July 2015 to allow Hernandez to address this threshold issue. At that hearing, his cou nsel 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 per son 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 citi ng cases in which courts have ap plied the definition from that statute to th e hardship requirement in § 1229b(b)(1)( D)).4 would be slightly longer because of his schedule, and the parti es agreed to reconvene in September 2015. In the interim, th e state court reduced one of Hernandez’s DUI convictions from a felony to a mis demeanor, making him eligible for cancellation of removal. 3 At the September 2015 hearing, the government conceded Hernande z’s present eligibility for cancellation of rem oval but noted “his last qua lifying 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] jeo pardizing [Hernandez] having qualifying relatives” beca use Karina would age out in Ja nuary 2016 and asked the IJ to “[s]chedule a hearing as s oon as possible.” R. at 175-76 . The IJ engaged in an extensive discussion with Herna ndez’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-f iled motion to pretermit. The IJ did not have any availability bef ore the age-out date, so he tr ansferred the case to a different IJ and set a merits h earing 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 De cember 2016, after Karina turned twenty-one. And i n September 2016, it was reset to January 2017. By the time the hearing took pla ce in 2017, Karina was no longe r a qualifying relative because she was twenty-on e years old and thus not a “c hild” per the applicable

3 Hernandez affirmed that he stopp ed drinking alcohol after his 2001 conviction and submitted statements of suppo rt from his church and communi ty.5 statute. See § 1101(b)(1). The IJ found Hernandez to be ineligible for canc ellation of removal per In re Isidro-Zamorano , 25 I. & N. Dec. 8 29 (BIA 2012), 4 but granted voluntary departure in lieu of removal. Hernandez timely appea led to the BIA, but his appeal was dismissed. The BIA fo und Hernandez to be “responsib le for most of the delay in the hearing and in not qualifying for cancellation of removal,” leaving only a four-month window to consider h is application. R. at 79. The BIA also rejected Hernandez’s due process argumen ts, finding he “received a full and fair hearing.” Id. Hernandez did not file a petiti on 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 P aul, in violation of his due process rights. 5 Paul represented Hernandez in c onnection with his application for

4 Under that decision, an applic ant for cancellation of removal who loses his qualifying relationship before the IJ adjudicates his applicati on on the merits is ineligible for relief because an application for relief from re moval 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 qualifyi ng relatives should properly be considered as of the time an application for cancellation of removal is fina lly 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 i neffective assist ance of counse l must be supported by (1) the aggrieved p arty’s affidavit setting forth the agreement that was entered into with forme r counsel and what counsel did or did not represent to the respondent in this regard; (2) evidence that f ormer counsel was informed of the allegations a nd allowed the opportunity to respond; and (3) evidence the aggrieved pa rty filed a complaint with app ropriate disciplinary authorities, and if not, why not.
Mickeviciute v. INS , 327 F.3d 1159, 1161 n. 2 (10th Cir. 2003) (citing In re Lozada ,6 cancellation of removal from May 20 15 through his final hearing in January 2017. Hernandez faulted Paul for not u nderstanding the applicable law as to qualifying relatives and for not pushing for an ear lier final hearing by filing “an emergency motion to advance” or otherwise ensurin g his continued eligibility for re lief. R. at 23. The BIA denied the m otion to reopen. It explained, “An alien m aking an ineffective assistance of counsel claim must show not only that his attorney’s performance was deficient but als o ‘that he was prejudiced by h is representative’s performance.’” R. at 3 (quoting In re Lozada , 19 I. & N. Dec. 637 , 638 (BIA 1988)). The BIA found the prejudice comp onent to be lacking—concluding Hernandez “has not meaningfully shown that he was p rejudiced by ineffective assist ance of former counsel,” “[e]ven assuming, without decidi ng, that [Paul’s] behavior was somehow deficient.” R. at 4. Deflecting blame from Paul, the BIA poi nted out how P aul was retained three years after the issuance of the N otice to Appear, at a time whe n Hernandez was not actually eligible for cancellation of removal because of his co nviction history; Paul then obtained two continuances to successfully remove that barrier t o eligibility and sought to schedule a hearing “as soon as p ossible,” expressing his “conce rn . . . that the sole qualifying relative would be ‘agi ng out’” in January 2016. Id. (internal quotation marks omitted). The BIA also referen ced the IJ’s “frustration” at He rnandez for the three-year delay of the case. Id. Finally, the BIA acknowledged th e role played by inadequate resources at the immigration court:

19 I. & N. Dec. 637, 6 39 (BIA 1988)).7 [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 Immi gration Court during the releva nt time period, rather than any actions o r inactions of the respondent’ s former counsel. Id. Hernandez filed a timely petiti on for review of the BIA’s decis ion denying his motion to reopen.
II. Analysis The BIA’s denial of a motion to r eopen is reviewable only for a n abuse of discretion. Maatougui v. Holder , 738 F.3d 1230, 1239 ( 10th Cir. 2013). The Supreme Court has described th e BIA’s discretion over motions t o reopen as “broad.”
Kucana v. Holder , 558 U.S. 233, 242 (2010) (inter nal quotation marks omitted). An alien challenging the denial of a motion to reopen “bears a hea vy burden to show the BIA abused its discretion,” Maatougui , 738 F.3d at 1239, because “motions to reopen immigration cases are p lainly disfavored,” id. (alteration and internal quotation marks omitted). Furthermore, the BIA “has discretion to deny a motio n to reopen even if the party moving has made out a p rima facie case for relief.” 8 C.F.R. § 1003.2(a); accord Maatougui , 738 F.3d at 1240. “The BIA abus es its discretion when its decision provides no rational expl anation, inexplicably departs from established policies, is devoid of any reasoni ng, or contains only summary or conclusory
statements.” Infanzon v. Ashcroft , 386 F.3d 1359, 1362 (10t h Cir. 2004) (internal quotation marks omitted).8 Although we sympathize with Herna ndez’s plight to the extent it stems in part from congestion within the immig ration court, we discern no abu se of discretion under the circumstances presen ted here. As stated above, Herna ndez’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 with in these parameters stems fro m an ineffective-assistance-of-counsel claim. 6 The BIA properly recited the relevant standard: “Ineffec tive assistance of counsel in a deportation proceeding is a denial of due process only if the proceedi ng was so fundamentally unfair that the alien was prevented from reasonably presen ting his case. One must show, moreover, that he was prejudiced by his repres entative’s performance.” In re Lozada , 19 I. & N. Dec. 637, 638 (BIA 1988) (citations omitted). The record shows the removal pr oceedings dragged on for years d ue to a combination of factors—includin g continuances requested by Hern andez’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 constrain ts imposed by a busy immigration court system. Yet Hernandez now seeks to place the blame solely on an attorney who did not enter an ap pearance 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 performan ce was not ineffective

6 Hernandez does not assert a due-p rocess violation due to conge stion within the immigration court in challe nging the denial of the motion t o reopen.9 and even achieved a positive resu lt by removing a barrier to el igibility for cancellation of removal. Furthermore, the BIA did not depart from establish ed law or policies. Against this backdrop, Hernandez has not satisfied the heavy bu rden he must overcome to show an abuse of discretion. See Maatougui , 738 F.3d at 1239 (articulating the re levant standard).
III. Conclusion Because we conclude the BIA did not abuse its discretion in den ying Hernandez’s motion to reopen base d on ineffective assistance of counsel, we deny the petition for review.

Entered for the Court

Terrence L. O’Brien Circuit Judge