Hacer Cakmakci v. Atty Gen USA

Filing 3110171406

Hacer Cakmakci v. Atty Gen USA

Doc. 3110171406 Att. 1

Case: 08-4628

Document: 003110171406

Page: 1

Date Filed: 06/07/2010

N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 08-4628 ___________ H A C E R CAKMAKCI, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A097 521 211) Im m ig ratio n Judge: Honorable Margaret R. Reichenberg ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) A p ril 14, 2010 B E F O R E : SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges (Opinion Filed: April 15, 2010) ___________ O P IN IO N ___________ P E R CURIAM. H a c er Cakmakci has filed a petition for review of an order of the Board of Im m ig ra tio n Appeals ("BIA" or "Board") denying her motion to reopen her removal p ro c e e d in g s . For the reasons that follow, we will deny the petition for review. 1

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Case: 08-4628

Document: 003110171406

Page: 2

Date Filed: 06/07/2010

C a k m a k c i is a native and citizen of Turkey who arrived in the United States in April 2005 without valid travel documents. She was charged with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I). She appeared before the Immigration Judge ("IJ") without c o u n se l and received repeated continuances of her hearing date for the purpose of o b tain in g attorney representation. The IJ instructed Cakmakci regarding her right to p rese n t evidence and question any witnesses, and granted further continuances. The IJ h e ld an evidentiary hearing on April 19, 2006 and heard closing arguments on May 9, 2 0 0 6 . Cakmakci proceeded pro se and presented her own testimony in support of her c la im s . T h e IJ found her to be not credible, denied all relief, and ordered C a k m a k c i's removal. Cakmakci appealed through counsel, arguing that the IJ had failed to consider whether Cakmakci was competent to face removal proceedings and to p a r tic ip a t e in the merits hearing, and that the IJ violated her due process rights because C ak m ak ci lacked sufficient mental capacity to participate. On May 12, 2008, the BIA d is m is s e d the appeal, affirming and adopting the IJ's decision. The BIA noted that no a p p e lla te brief was filed, and no documentary evidence was submitted to support the new c laim of mental incompetence. The BIA also concurred with the IJ's determination that, e v e n if credible, Cakmakci failed to meet her burden of proof for her claims. O n June 11, 2008, Cakmakci filed a pro se motion to reconsider and reopen,

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Case: 08-4628

Document: 003110171406

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Date Filed: 06/07/2010

a rg u in g that counsel on appeal was ineffective in failing to file a brief and submit d o c u m e n ta tio n , that she had difficulty obtaining counsel, that she suffered physical and e m o tio n a l injuries from a car accident, and that she was unable to present her story at the h e a rin g due to the tremendous pressure. In support of the motion, Cakmakci submitted d o c u m e n ts , including medical and psychiatric records, and letters indicating that she was p u rsuin g official grievances against former counsel. On October 31, 2008, the BIA c o n stru e d the motion as a motion to reopen and denied it. The BIA concluded that, aside f ro m the issue of whether Cakmakci met the procedural requirements of Matter of L o z a d a, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), regarding her ineffective a ss ista n c e claim, Cakmakci had presented nothing to establish her prima facie eligibility f o r asylum, withholding of removal, or CAT relief if her proceedings were reopened. This petition for review followed. W e have jurisdiction to review the BIA's denial of Cakmakci's motion to re o p e n under 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of d is c re tio n . See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Thus, to succeed o n her petition for review, Cakmakci must show that the Board's decision was somehow a rb itra ry, irrational, or contrary to law. See id. In a motion to reopen removal proceedings, the alien must proffer "new f a c ts to be proven at a hearing to be held if the motion is granted," and the motion "shall b e supported by affidavits or other evidentiary material." 8 C.F.R. § 1003.2(c)(1). A

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Case: 08-4628

Document: 003110171406

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Date Filed: 06/07/2010

m o tio n to reopen proceedings "shall not be granted" unless it appears to the Board that th e evidence offered "is material and was not available and could not have been d isc o v e re d or presented at the former hearing." Id. The Board may deny a motion to re o p e n proceedings on any of these grounds: (1) it may hold that the alien has failed to e sta b lis h a prima facie case for the underlying substantive relief; (2) it may conclude that th e alien has failed to introduce previously unavailable and material evidence; and (3) if th e underlying substantive relief is discretionary, it may decline to consider the first two th re sh o ld requirements and, instead, determine that the alien would not be entitled to the re q u e s te d discretionary grant of relief. Immigration & Naturalization Serv. v. Doherty, 5 0 2 U.S. 314, 323 (1992) (citing Immigration & Naturalization Serv. v. Abudu, 485 U.S. 9 4 , 104-05 (1988)). "As a general rule, motions to reopen are granted only under co m p elling circumstances." Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). C a k m a k c i argues that the BIA and the IJ erred in failing to address whether s h e was prejudiced by proceeding pro se at the hearing, given that she was mentally and p h ys ic a lly ill at the time of the hearing. However, Cakmakci did not file a timely petition f o r review of the BIA's May 12, 2008 decision, and we lack jurisdiction to review the B IA 's disposition of her due process claim and claim of incompetence at the hearing. See 8 U.S.C. § 1252(b)(1); Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405 (1 9 9 5 ). As for Cakmakci's arguments concerning counsel on appeal, we conclude that th e BIA did not abuse its discretion in denying the motion to reopen, even assuming that

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Document: 003110171406

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Date Filed: 06/07/2010

c o u n se l was ineffective, because Cakmakci offered no evidence in her motion showing p rim a facie eligibility for relief if her case were reopened. Although she stated in her m o tio n that she was unable to relate her story fully during the hearing before the IJ, and th a t "if given another opportunity [she] will be able to present a better case," Cakmakci p ro v id e d no additional information as to what her new supporting testimony or evidence w o u ld be.1 The Board's reasons for denying the motion to reopen were not arbitrary, c a p ric io u s or contrary to law. W e will deny the petition for review.

As noted by the BIA in its October 31, 2008 decision, the BIA held in its M a y 12, 2008 decision that, even assuming that Cakmakci's testimony was credible, she d id not meet her burden of showing past persecution or a well-founded fear of future p e rs e c u tio n in Turkey; her claim was not based on a protected ground. 5

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