FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 30, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court RIGOBERTO FLORES-CASTILLO, Petitioner, v. No. 19-9512 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. ORDER AND JUDGMENT* Before MATHESON, McKAY, and BACHARACH, Circuit Judges. In January 2015, the Department of Homeland Security informed Petitioner Rigoberto Flores-Castillo, a native and citizen of Mexico, that it intended to reinstate a prior order of removal against him. Petitioner claimed a fear of returning to Mexico, and an asylum officer interviewed him to determine if he was entitled to asylum or protection under the Convention Against Torture. The asylum officer concluded that his testimony, * After examining the briefs and the appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. while credible, did not establish a reasonable fear of either persecution based on a protected characteristic or torture carried out by or with the acquiescence of a public official. The asylum officer’s decision was affirmed by an immigration judge following a reasonable-fear hearing at which Petitioner was represented by counsel. Because the immigration judge agreed with the asylum officer, his decision was not appealable to the Board of Immigration Appeals, see 8 C.F.R. § 1208.31(g)(1), but it was reviewable in this court as a “final order of removal,” 8 U.S.C. § 1252(a)(1), (5). However, “[d]ue to an error and misunderstanding” between the two attorneys who were representing Petitioner, “while a Petition for Review of the adverse November 20, 2018 decision of the immigration judge had been prepared, same was not filed with the Court” within the thirty-day filing deadline. (Petitioner’s Br. at 7.) Realizing that he had missed the filing deadline, lead counsel filed a motion to the immigration judge in which he conceded that he had provided ineffective assistance and asked the immigration judge to “rescind and reissue” the adverse decision so the filing deadline would be re-triggered, as “this avenue appears to be the only mechanism for reinstating the due process rights of Mr. Flores Castillo.” (BIA R. at 30, 34.) The immigration judge denied the motion on a one-page preprinted form, checking the box next to “No good cause has been established for the above request” and providing a short handwritten explanation: “The applicant has not established that the Court has authority to rescind and reissue its order or jurisdiction over this matter. The applicant has also not -2- shown any error of fact or law in the Court’s decision.” (Id. at 2.) Petitioner seeks review of the immigration judge’s denial ...
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