Victor Rodriguez-Salazar v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60771 Affirmed in Part and Dismissed in Part] Judge: CES , Judge: EBC , Judge: LHS Mandate pull date is 08/14/2017 [15-60771]

Case: 15-60771

Document: 00514042639

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Date Filed: 06/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 15-60771
Summary Calendar

FILED
June 21, 2017
Lyle W. Cayce
Clerk

VICTOR RODRIGUEZ-SALAZAR, also known as Gonzalo Fernandez-Angel,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A093 130 967
Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
Victor Rodriguez-Salazar, a native and citizen of Mexico, was ordered
removed from the United States. He petitions for review of a decision by the
Board of Immigration Appeals (BIA) dismissing his appeal and denying his
motion to reopen.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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Rodriguez-Salazar appeared before the immigration judge and conceded
that he was inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had
entered this country without inspection, and he was ordered removed to
Mexico. Rodriguez-Salazar’s counsel worked with counsel for the Department
of Homeland Security (DHS), and the parties agreed that Rodriguez-Salazar
could apply to adjust his status to that of a legal permanent resident. When
the DHS conducted its usual fingerprint and background checks, however, it
learned that Rodriguez-Salazar had sustained two convictions in 1986, under
the alias Gonzalo Fernandez-Angel, for aiding and abetting the illegal entry of
aliens into the United States, in violation of 8 U.S.C. § 1325(a) and 18 U.S.C.
§ 2.

Those convictions rendered Rodriguez-Salazar inadmissible on the

additional ground that he was an alien smuggler for purposes of
§ 1182(a)(6)(E)(i), and there is no dispute that there is no waiver of
inadmissibility for an alien convicted of alien smuggling. Counsel sought no
further relief and preserved the matter for appeal. On appeal, RodriguezSalazar raised only claims of ineffective assistance of counsel, and he sought
to have the BIA reopen his immigration proceedings.
Adjustment of status is a discretionary form of relief from removal. See
Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006). Accordingly, this court
may only review the denial of that relief if there was a legal or constitutional
error. See 8 U.S.C. § 1252(a)(2)(B)(ii), (a)(2)(D). Rodriguez-Salazar argues that
his attorney rendered ineffective assistance during his immigration
proceedings. Thus, we have jurisdiction to review the dismissal of his appeal
to the extent that he presents a constitutional claim.
“Although an alien has no Sixth Amendment right to effective counsel
during removal proceedings, this court has repeatedly assumed without
deciding that an alien’s claim of ineffective assistance may implicate due

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process concerns under the Fifth Amendment.” Mai v. Gonzales, 473 F.3d 162,
165 (5th Cir. 2006) (internal citation omitted). We need not resolve the nature
and extent of the due process right in this case, particularly as the BIA has
recognized and developed procedures for addressing such a claim. See id.
Moreover, Rodriguez-Salazar’s Fifth Amendment due process rights are not
implicated here because the discretionary relief from removal “is not a liberty
or property right that requires due process protection.” Ahmed, 447 F.3d at
440. “Concomitantly, when there is no due process right to the ultimate relief
sought, there is no due process right to effective assistance of counsel in pursuit
of that relief.” Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
Thus, Rodriguez-Salazar had no Fifth Amendment right to the effective
assistance of counsel in seeking either adjustment of status, cancellation of
removal, or voluntary departure because those are all discretionary forms of
relief. See Dada v. Mukasey, 554 U.S. 1, 8 (2008); Tula Rubio v. Lynch, 787
F.3d 288, 290 (5th Cir. 2015); Ahmed, 447 F.3d at 440. To the extent that
Rodriguez-Salazar challenges the dismissal of his appeal by the BIA, his
petition for review is dismissed because he has not presented a substantial
constitutional claim. See Gutierrez-Morales, 461 F.3d at 609-10; Assaad v.
Ashcroft, 378 F.3d 471, 476 (5th Cir. 2004).
We may review the denial of Rodriguez-Salazar’s motion to reopen since
“the BIA itself has determined that ineffective assistance of counsel is a valid
ground for reopening a deportation case.” Mai, 473 F.3d at 165. With respect
to the denial of his motion to reopen, Rodriguez first argues that counsel should
not have presented the immigration judge with documentation of a criminal
record that precluded him from receiving relief, but he willfully abandons that
argument in his reply brief. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th
Cir. 2003). He also argues that counsel performed deficiently in deciding to

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abandon his application for cancellation of removal and in failing to request
voluntary departure. Further, he argues, the BIA should have explained in
detail why it found his claim that he would have been granted cancellation of
removal and voluntary departure to be speculative.
Having reviewed the administrative record, we conclude that the BIA’s
denial of Rodriguez-Salazar’s motion to reopen was not “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.”
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks
and citation omitted).

Under the highly deferential abuse-of-discretion

standard we apply in reviewing that denial, Zhao v. Gonzales, 404 F.3d 295,
303 (5th Cir. 2005), it must be upheld, Singh, 436 F.3d at 487. Accordingly, to
the extent that Rodriguez-Salazar challenges the denial of his motion to
reopen, his petition for review is denied.
PETITION FOR REVIEW DISMISSED IN PART and DENIED IN
PART.

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