United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-2738 ___________________________ Francisco Kimeu lllllllllllllllllllllPetitioner v. William P. Barr lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: August 4, 2020 Filed: August 28, 2020 [Unpublished] ____________ Before KELLY, ERICKSON, and STRAS, Circuit Judges. ____________ PER CURIAM. Francisco Kimeu, a citizen of Kenya, petitions for review of an order of the Board of Immigration Appeals (BIA), which upheld an immigration judge’s (IJ’s) denial of his application for cancellation of removal and denied his request to remand to the IJ based on ineffective assistance of counsel. Kimeu challenges only the denial of his request to remand, which we review for abuse of discretion, but because Kimeu sought discretionary relief in the form of cancellation of removal, our review is limited to constitutional claims and questions of law, which we review de novo. See Sharif v. Barr, 965 F.3d 612, 618-20 (8th Cir. 2020); Zeah v. Holder, 744 F.3d 577, 580-81 (8th Cir. 2014). We conclude that Kimeu, who asserts he did not receive a fair hearing before the IJ, cannot pursue a constitutional claim for ineffective assistance of counsel because he has no protected property or liberty interest in the discretionary relief of cancellation of removal. See Etchu-Njang v. Gonzales, 403 F.3d 577, 585 (8th Cir. 2005) (concluding that even if counsel was ineffective, there was no due process violation because applicant has no constitutionally protected liberty interest in cancellation-of-removal relief); see also Obleshchenko v. Ashcroft, 392 F.3d 970, 971 (8th Cir. 2004) (concluding that because applicants had no protected liberty or property interest in the discretionary statutory relief they sought, they had no right to effective assistance of counsel). To the extent Kimeu asked the BIA to exercise its discretionary authority to remand the proceedings based on ineffective assistance of counsel, we conclude that the BIA did not abuse its discretion in denying remand. See Singh v. Lynch, 803 F.3d 988, 993-94 (8th Cir. 2015) (concluding that although there is no constitutional right to effective assistance of counsel in a removal proceeding, BIA may exercise discretion to remand based on counsel’s ineffectiveness, and this court may review that discretionary decision; to prevail, applicant was required to show (1) counsel’s performance was so ineffective it rendered proceeding fundamentally unfair, and (2) he was prejudiced by counsel’s performance). Although Kimeu urges this court to adopt a per se presumption of prejudice, this court has not recognized such a presumption in immigration proceedings. See Paz v. Ashcroft, 113 F. App’x 736, 736 (8th Cir. 2004) (unpublished per curiam); cf. Caballero-Martinez, 920 F.3d 543, 548 (8th Cir. 2019) (rejecting petitioner’s argument that In re L-O-G-, 21 I. & N. Dec. 413 (BIA 1996), established a lower standard requiring remand when presented with -2- “potentially worthwhile new evidence”; BIA applied correct legal standard requiring applicant to demonstrate new evidence “would likely change” the result). Even assuming counsel’s performance was deficient, we conclude the BIA acted within its ...
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