Marlon Julian Pina Gonzalez, a native of Cuba and lawful permanent resident, faced removal proceedings after a conviction for credit card abuse, a crime involving moral turpitude. He sought cancellation of removal under 8 U.S.C. § 1229b(a), but the immigration judge pretermitted his application because he was statutorily ineligible. The Board of Immigration Appeals (BIA) summarily dismissed his appeal. Fifteen months later, Pina Gonzalez moved to reopen the proceedings, claiming his attorney was ineffective for failing to advise him of a potential waiver of inadmissibility under 8 U.S.C. § 1182(h). This waiver allows certain immigrants to apply for relief if their denial of admission would cause extreme hardship to a U.S. citizen spouse, parent, son, or daughter. Pina Gonzalez argued that his son has Crohn's disease and would suffer if he were removed. The BIA denied the motion, finding the filing untimely and not subject to equitable tolling because Pina Gonzalez failed to prove he was eligible for the waiver in the first place.
The Fifth Circuit reviewed the petition under a highly deferential abuse-of-discretion standard for the BIA's denial of the motion to reopen. The court acknowledged that it has jurisdiction to review claims of ineffective assistance of counsel as constitutional questions. To equitably toll the ninety-day statutory deadline, a petitioner must show that an extraordinary circumstance prevented timely filing. The court assumed that a valid claim of ineffective assistance of counsel could constitute such a circumstance, but emphasized that the claim must satisfy the two-pronged test from Strickland v. Washington: counsel was deficient and the petitioner was prejudiced. Prejudice requires a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. In this case, the court found that Pina Gonzalez could not establish prejudice. To succeed on a § 1182(h) waiver claim, he needed to prove that his removal would cause extreme hardship to his U.S. citizen son. The record showed his son has Crohn's disease, but Pina Gonzalez provided no evidence that he could not financially support his family from Cuba, that his family's standard of living would diminish, or that his son's medical treatment would be impacted. Without evidence of uncommon or atypical results of removal, the BIA correctly found he was not eligible for the waiver. Because he could not have obtained the waiver even with competent counsel, he suffered no prejudice from his attorney's alleged error. Consequently, the motion to reopen remained untimely, and the removal order stands.
The petition for review is denied, leaving the removal order against Pina Gonzalez in effect. The decision reinforces the strict requirement that a petitioner seeking equitable tolling based on ineffective assistance of counsel must prove that the alleged error actually prejudiced the outcome. Specifically, in immigration cases involving potential waivers, the petitioner must demonstrate eligibility for the waiver by proving extreme hardship to a qualifying relative. Without such proof, the ninety-day deadline for reopening proceedings cannot be tolled, and the original removal order remains enforceable.
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