Appellate Case: 21-9542 Document: 010110632110 Date Filed: 01/14/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 14, 2022 _________________________________ Christopher M. Wolpert Clerk of Court WENDI CAROLINA HUESO- CHOTO, Petitioner, No. 21-9542 v. (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________ This case grew out of Ms. Wendi Carolina Hueso-Choto’s applications for asylum, withholding of removal, and deferral of removal. Unsuccessful before the immigration judge, Ms. Hueso-Choto moved in the Board of Immigration Appeals for a remand based on ineffective * The parties do not request oral argument, and it would not help us decide the appeal. So we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-9542 Document: 010110632110 Date Filed: 01/14/2022 Page: 2 representation. The Board denied the motion to remand, leading Ms. Hueso-Choto to petition for judicial review based on ineffectiveness of her legal representative and new legal developments. We deny the petition, concluding that the Board acted within its discretion when declining to remand the proceedings based on ineffective representation and new legal developments do not cause us to question the Board’s factual findings or legal conclusions. Standard of review. In reviewing the Board’s denial of a motion to remand, we apply the abuse-of-discretion standard. Witjaksono v. Holder, 573 F.3d 968, 978–79 (10th Cir. 2009). “An abuse of discretion occurs when the [Board’s] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id. at 979 (internal quotation marks omitted). Ineffectiveness of the representation in the removal proceedings. In the removal proceedings, Ms. Hueso-Choto had a right under the Fifth Amendment to effective assistance. Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999). This right was violated only if the representative’s deficiencies were so prejudicial that they prevented a fundamentally fair proceeding. Id. Prejudice would exist if Ms. Hueso- Choto had shown a reasonable likelihood of a better outcome with effective 2 Appellate Case: 21-9542 Document: 010110632110 Date Filed: 01/14/2022 Page: 3 representation. United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc). In petitioning for judicial review, Ms. Hueso-Choto doesn’t say how her representative’s deficiencies had affected the outcome. So she’s waived any right to judicial review based on prejudice. Herrera-Castillo v. Holder, 573 F.3d 1004, 1010 (10th Cir. 2009). But even if we were to sua sponte review the record, we’d conclude that the Board had acted within its discretion. In moving …
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