PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Olen on brief for petitioner.
Halliday Hickein, Trial Attorney, Joseph H. Hunt, Assistant
Attorney General, Shelley R. Goad, Assistant Director, Office
of Immigration Litigation, U.S. Department of Justice, on
brief for respondent.
Lynch, Thompson, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Franco-Ardon ("Franco-Ardon"), a Guatemalan
citizen, petitions for review of the Board of Immigration
Appeals' ("BIA") denial of his motion to reopen
his 2012 order of removal. Franco-Ardon based that motion on
his prior counsel's alleged ineffective assistance of
counsel in failing to file a brief with this Court in his
petition for review of the BIA's denial of his earlier
challenge to that removal order. We deny the petition.
petition arises from the following set of circumstances. On
January 18, 2012, the BIA affirmed the Immigration
Judge's (IJ) decision ordering his removal and denying
his request for asylum, withholding of removal, and
protection under the Convention Against Torture. Franco-Ardon
then petitioned for review of the BIA's ruling to our
Court in Franco-Ardon v. Holder,
C.A. No. 12-1214. We dismissed the petition on October 23,
2012. We did so on the ground that Franco-Ardon had failed to
file a brief pursuant to Local Rules 45.0(a) and 3.0(b).
thereafter made a number of applications for a stay of
removal to this Court, the last of which we denied in August
of 2017 and thus many years after he had filed his petition
for review of the BIA's ruling affirming his order of
removal. Franco-Ardon then retained new counsel, who
investigated the reasons for our dismissal of
Franco-Ardon's 2012 petition for review. That counsel
informed Franco-Ardon that his petition for review had been
dismissed due to his former counsel's failure to file a
brief to our Court.
wake of having been so informed, on January 10, 2018,
Franco-Ardon filed a motion to reopen with the BIA. He did so
on the ground that his prior counsel had provided him with
ineffective assistance of counsel by failing to file the
opening brief before this Court in his petition for review.
The BIA denied the motion to reopen on May 18, 2018. The BIA
concluded that Franco-Ardon had failed to establish either
the requisite due diligence to excuse his failure to comply
with the 90-day filing deadline for motions to reopen,
see 8 U.S.C. § 1229a(c)(7)(C)(i), or a
"likelihood of success" regarding his ineffective
assistance of counsel claim "based on prevailing First
Circuit precedent" which the BIA did not specify.
Franco-Ardon now petitions from the BIA's denial of his
motion to reopen.
government contends that we lack jurisdiction over
Franco-Ardon's petition for review because it challenges
the BIA's decision to reject a motion to reopen that is
based on ineffective assistance of counsel that was allegedly
rendered only after the BIA's earlier
proceedings had come to an end. The government goes on to
contend that, even if we do have jurisdiction to review the
BIA's ruling rejecting that ground for granting the
motion to reopen, Franco-Ardon's petition for review must
be denied for either of the two reasons that the BIA gave for
denying the motion.
proceed on the assumption that we may review the BIA's
decision to deny Franco-Ardon's motion to reopen on the
merits as, even on that assumption, the petition for review
still must be denied. See Morris v.
Sessions, 891 F.3d 42, 48 (1st Cir. 2018). We come
to that conclusion even if we look past Franco-Ardon's
years-long delay in seeking the motion to reopen and focus,
instead, only on his challenge to the BIA's ruling
concerning his failure to show the "likelihood of
success" that the BIA required him to demonstrate with
respect to his ineffective assistance of counsel claim.
the BIA was not entirely clear as to the basis for its
"likelihood of success" requirement, the parties
appear to agree that the BIA was imposing, in effect, a
prejudice requirement, with respect to Franco-Ardon's
ineffective assistance of counsel claim, such that in the
absence of him demonstrating sufficient prejudice, his motion
to reopen could be properly denied. Franco-Ardon contends
that the BIA erred in concluding that his ineffective
assistance of counsel claim could not support his motion to
reopen due to his failure to show prejudice on the basis of
two out-of-circuit precedents -- Dearingerv.Reno ...