Dusengimana v. Garland

Case: 22-60199 Document: 00516625785 Page: 1 Date Filed: 01/27/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 27, 2023 No. 22-60199 Lyle W. Cayce Summary Calendar Clerk Gadi Dusengimana, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097 076 489 Before Barksdale, Higginson, and Ho, Circuit Judges. Per Curiam:* Gadi Dusengimana, a native of Rwanda and citizen of Burundi, petitions for review of the Board of Immigration Appeals’ (BIA) dismissing his appeal from an order of the Immigration Judge (IJ) denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Although Dusengimana waived his right to * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60199 Document: 00516625785 Page: 2 Date Filed: 01/27/2023 No. 22-60199 appeal the IJ’s decision, he subsequently, through new counsel, filed an appeal, maintaining, inter alia, his waiver was invalid. The BIA determined Dusengimana knowingly and intelligently waived his right to appeal; and, in reaching that decision, noted that he failed to comply with the procedural requirements necessary to present a claim for ineffective assistance of counsel (IAC), and that there was no evidence his former counsel provided inaccurate advice. The BIA’s factual findings are reviewed for substantial evidence; its conclusions of law, de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). The IJ’s ruling is reviewed only to the extent it affected the BIA’s decision. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). The substantial-evidence standard applies to findings that a waiver was made knowingly and intelligently. E.g., Kohwarien v. Holder, 635 F.3d 174, 178–79 (5th Cir. 2011). Under this standard, “[petitioner] must show that the evidence was so compelling that no reasonable factfinder could conclude against it”. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). Dusengimana contends his waiver was induced by misleading and incorrect advice from the IJ and his former counsel, making it invalid. He additionally maintains the BIA deprived him of the opportunity to present this challenge by rendering its decision without first allowing him to file a brief. Although the IJ incorrectly predicted how long the BIA would take to rule on Dusengimana’s appeal, the IJ prefaced that this prediction was based on his experience and that he could not be certain. And, the IJ’s statement that Dusengimana would remain detained while his appeal to the BIA was pending was also incorrect; he was released about one month after the IJ’s ruling. While Dusengimana contends it was pursuant to a nationwide 2 Case: 22-60199 Document: 00516625785 Page: 3 Date Filed: 01/27/2023 No. 22-60199 injunction from a California district court, the record is unclear what caused his release. That injunction was reversed prior to the IJ’s ruling. Therefore, even assuming the IJ was aware of the injunction, Dusengimana fails to show the IJ’s statement was misleading at the time of …

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