Case: 12-14162   Date Filed: 05/20/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14162
                        Non-Argument Calendar
                      ________________________

                       Agency No. A096-529-029



CARLOS ISRAEL MATA GRATEROL,

                                                                      Petitioner,


                                  versus


U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                             (May 20, 2013)

Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:
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      Carlos Israel Mata Graterol, a native and citizen of Venezuela, petitions for

review of the decision of the Board of Immigration Appeals (BIA), which denied

his motion to reopen his removal proceedings. In his motion to reopen before the

BIA, Mata Graterol contended that his former counsel was ineffective for advising

him against contesting the denial of his I-485 application for adjustment of status,

and for failing to adequately prepare him for his asylum proceedings.

      Following the BIA’s denial of his motion, Mata Graterol petitioned for our

review of the BIA’s denial. In response, the government filed an unopposed

motion asking that we remand the case to allow the BIA to “address the impact, if

any, of relevant Eleventh Circuit legal precedent.” After we granted that motion,

the BIA issued another opinion, considering our relevant precedent and denying

Mata Graterol’s motion to reopen. Mata Graterol again petitioned for our review

of the BIA’s decision, similarly arguing that his counsel was ineffective for

advising him against challenging the denial of his application for adjustment of

status, and for failing to prepare for his asylum proceedings. After careful

consideration, we affirm the BIA’s denial of Mata Graterol’s motion to reopen.

                                       I.

      “We review the denial of a motion to reopen removal proceedings for abuse

of discretion. To the extent that the decision of the Board was based on a legal

determination, our review is de novo.” Li v. U.S. Att’y Gen., 

, 1374


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(11th Cir. 2007) (citation omitted). A petitioner may file a motion to reopen based

on alleged ineffective assistance of counsel. See, e.g., Gbaya v. U.S. Att’y Gen.,

, 1221–22 (11th Cir. 2003). “[T]o establish the ineffective

assistance of counsel in the context of a deportation hearing, an alien must

establish that [his] counsel’s performance was deficient to the point that it

impinged upon the fundamental fairness of the hearing such that the alien was

unable to reasonably present [his] case.” Dakane v. U.S. Att’y Gen., 

, 1273–74 (11th Cir. 2005) (quotation marks omitted). Mata Graterol “must

also establish prejudice, which exists when the performance of counsel is so

inadequate that there is a reasonable probability that but for the attorney’s error,

the outcome of the proceedings would have been different.” Ali v. U.S. Att’y

Gen., 

, 1329 (11th Cir. 2011) (quotation marks omitted).

                                        II.

      First, Mata Graterol argues that his counsel was ineffective for advising him

not to challenge the denial of his application for adjustment of status. The

Department of Homeland Security (DHS) denied Mata Graterol’s application to

adjust his status after concluding that his marriage to a Cuban citizen, who was a

lawful permanent resident pursuant to the Cuban Refugee Adjustment Act, Pub. L.

No. 89-732, 80 Stat. 1161 (codified as amended at 8 U.S.C. § 1255 note), was a

fraudulent attempt to circumvent immigration laws. After Mata Graterol sought


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advice from his lawyer on contesting the denial of his application for adjustment of

status, his counsel discouraged him from pursuing this course of action, and

suggested instead that he seek relief under the asylum laws. The BIA concluded

this was a “reasonable tactical decision,” because Mata Graterol was not living

with his wife at the time, his wife was not available to provide testimony, and there

was a previous finding that Mata Graterol’s “marriage was entered into for the

primary purpose of circumventing the immigration laws of the United States.”

      We agree with the BIA that Mata Graterol’s attorney made a reasonable

strategic decision in advising Mata Graterol not to contest the denial of his

application for adjustment of status, and that Mata Graterol did not make a

showing of prejudice. This decision was reasonable for more than one reason,

including DHS’s several findings regarding his fraudulent marriage and the fact

that Mata Graterol admitted to the Immigration Judge (IJ) that he had not lived

with his wife for approximately two years. The Cuban Refugee Adjustment Act—

the basis of Mata Graterol’s application to adjust his status—requires the

petitioning spouse to “reside with the qualifying Cuban alien.” Gonzalez v.

McNary, 

, 1420 (11th Cir. 1993). Thus, counsel was not ineffective

for advising Mata Graterol to pursue a different strategy. See 

(11th Cir. 2011) (“An attorney does not render ineffective assistance when he




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declines to make an argument that the attorney reasonably believed was . . .

doomed to fail.”) (quotation marks omitted).

                                        III.

      Second, Mata Graterol contends that his counsel was ineffective because he

“did not adequately assist him in preparing his case [for asylum].” He contends

this poor preparation resulted in his “generalized” testimony, which the IJ

concluded was not credible. However, Mata Graterol did not make a showing of

prejudice because he did not identify which details or specific evidence he would

have provided to the IJ if he had known to do so. Thus, Mata Graterol has not

shown “that there is a reasonable probability that but for the attorney’s error, the

outcome of the proceedings would have been different.” 

. For this reason, we cannot conclude that counsel was ineffective.

                                        IV.

      For these reasons, Mata Graterol’s petition is DENIED.




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