Herrera-Antunez v. Garland

19-2253 Herrera-Antunez v. Garland BIA A206 436 152 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 28th day of May, two thousand twenty-one. — 5 — 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ — 12 — 13 RICCY ISELA HERRERA-ANTUNEZ, 14 Petitioner, — 15 — 16 v. 19-2253 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ — 22 — 23 FOR PETITIONER: Nicholas J. Mundy, Esq., 24 Brooklyn, NY. — 25 — 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Justin R. Markel, Senior 28 Litigation Counsel; Sharon M. 1 Clay, Trial Attorney, Office of 2 Immigration Litigation, Civil 3 Division, United States Department 4 of Justice, Washington, DC. 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition is DENIED. 8 Petitioner Riccy Isela Herrera-Antunez, a native and 9 citizen of Honduras, seeks review of a June 11, 2019, BIA 10 decision denying her motion to reopen. In re Riccy Isela 11 Herrera-Antunez, No. A 206 436 152 (B.I.A. Jun. 11, 2019). 12 We assume the parties’ familiarity with the underlying facts 13 and procedural history. 14 We review the agency’s denial of a motion to reopen for 15 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 16 138 , 168–69 (2d Cir. 2008). “An abuse of discretion may be 17 found in those circumstances where the [BIA’s] decision 18 provides no rational explanation, inexplicably departs from 19 established policies, is devoid of any reasoning, or contains 20 only summary or conclusory statements; that is to say, where 21 the [BIA] has acted in an arbitrary or capricious manner.” Ke 22 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 , 93 (2d Cir. 23 2001) (internal citations omitted). — 2 — 1 The BIA did not abuse its discretion. As Herrera-Antunez 2 concedes, her argument under Pereira v. Sessions, 138 S. Ct. 3 2105 (2018), that her notice to appear (“NTA”) was 4 insufficient to vest jurisdiction with the immigration court, 5 is foreclosed by our decision in Banegas Gomez v. Barr, 922 — 6 — F.3d 101 (2d Cir. 2019). In Banegas Gomez, we held that 7 Pereira does not “void jurisdiction in cases in which an NTA 8 omits a hearing time or place.” 922 F.3d at 110. The 9 regulations do not require an NTA to specify the time and 10 date of the initial hearing, “so long as a notice of hearing 11 specifying this information is later sent to the alien.” Id. 12 at 112 (quotation marks and emphasis omitted). Although 13 Herrera-Antunez’s NTA did not specify the time and date of 14 her initial hearing, she received hearing notices and 15 appeared at her hearings. 16 The BIA also did not abuse its discretion in declining 17 to reopen based on ineffective assistance of counsel. To 18 succeed on her ineffective assistance claim, Herrera-Antunez 19 had “to show . . . that competent counsel would have acted 20 otherwise, and . . . that [s]he was prejudiced by h[er] 21 counsel’s performance.” Romero v. U.S. INS, 399 F.3d 109 , — 3 — 1 112 (2d Cir. 2005). “[P]rejudice is shown where ‘there is a 2 reasonable probability that, but for counsel’s unprofessional 3 errors, the result of the proceeding would have been 4 different.’” United States v. Copeland, 376 F.3d 61, 73 (2d 5 Cir. 2004) (quoting Strickland v. Washington, 466 U.S. 668 , 6 694 (1984)). 7 Herrera-Antunez argues that her former attorney should 8 have objected to admission of the credible fear interview 9 record that the immigration judge (“IJ”) relied on in making 10 an adverse credibility determination in the underlying 11 proceedings. This claim is unpersuasive: Herrera-Antunez’s 12 former counsel confirmed that she reviewed the interview with 13 Herrera-Antunez when preparing for the hearing, and Herrera14 Antunez told her that the interview record was correct. 15 Counsel therefore had no reason to object to the interview. 16 Further, Herrera-Antunez has not identified any basis for an 17 objection or that the result would have been different had an 18 objection been made because the IJ independently assessed the 19 reliability of the interview record. See Ming Zhang v. 20 Holder, 585 F.3d 715 , 723–25 (2d Cir. 2009); Ramsameachire v. 21 Ashcroft, 357 F.3d 169 , 179–80 (2d Cir. 2004). — 4 — 1 For the foregoing reasons, that the petition for review 2 is DENIED. All pending motions and applications are DENIED 3 and stays VACATED. 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court — 5 —