In Re: Mehanna v. ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2211
ROMILSON BATISTA FERREIRA,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin
Pomerleau PC were on brief, for petitioner.
Lindsay Corliss, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, with whom Joseph H. Hunt,
Assistant Attorney General, Civil Division, and Brianne W. Cohen,
Senior Litigation Counsel, Office of Immigration Litigation, were
on brief, for respondent.
September 18, 2019
SELYA, Circuit Judge. The petitioner, Romilson Batista
Ferreira, is a Brazilian national. He seeks judicial review of a
decision of the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration court's order of removal and its
concomitant denial of his application for cancellation of removal.
Finding no merit in the petitioner's asseverational array, we deny
the petition.
Our standard of review in this realm is familiar. We
will uphold findings of fact in removal proceedings "as long as
they are supported by substantial evidence on the record as a
whole." Pulisir v. Mukasey, 524 F.3d 302, 307 (1st Cir. 2008).
Legal conclusions, though, engender de novo review, "with some
deference to the agency's reasonable interpretation of statutes
and regulations that fall within its purview." Id.The petitioner's principal argument is that the Notice
to Appear (NTA) that initiated his removal proceedings was
defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018),
because it omitted the date and time of his initial removal
hearing. As a result of this defect, his thesis runs, the NTA was
insufficient to vest the immigration court with jurisdiction over
his removal proceedings and, thus, the removal order issued against
him is without effect.
We recently rejected essentially the same argument in an
opinion issued on September 6, 2019. See Goncalves Pontes v. Barr,
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___ F.3d ___ (1st Cir. 2019) [No. 19-1053]. No useful purpose
would be served by repastinating soil already well-plowed. For
substantially the same reasons as were explicated in Goncalves
Pontes, we hold that the petitioner's NTA was effective to commence
removal proceedings in the immigration court, notwithstanding the
absence of a date and time for his removal hearing. Consequently,
the petitioner's jurisdictional argument fails.
One loose end remains. In addition to challenging the
immigration court's jurisdiction, the petitioner also challenges
the BIA's rejection of his claim for relief from removal premised
upon the allegedly ineffective assistance afforded by his counsel.
This challenge need not detain us.
In his appeal to the BIA, the petitioner complained (for
the first time) that his prior attorney rendered ineffective
assistance by advising him not to testify before the immigration
court and by failing to advise him to pursue lawful permanent
residency through his U.S. citizen wife. The BIA gave short shrift
to these plaints, noting that the petitioner had not complied with
the procedural requirements set forth in Matter of Lozada, 19 I.
& N. Dec. 637 (BIA 1988). We discern no error.
We have recognized Lozada "as a leading case with respect
to claims of ineffective assistance of counsel in the immigration
context." Pineda v. Whitaker, 908 F.3d 836, 839 n.2 (1st Cir.
2018); see, e.g., García v. Lynch, 821 F.3d 178, 180-81 (1st Cir.
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2016); Orehhova v. Gonzales, 417 F.3d 48, 51-52 (1st Cir. 2005);
Saakian v. INS, 252 F.3d 21, 25-27 (1st Cir. 2001). Under Lozada,
a claim of ineffective assistance of counsel must be supported by:
(1) an affidavit explaining the petitioner's
agreement with counsel regarding legal
representation; (2) evidence that counsel has
been informed of the allegations of
ineffective assistance and has had an
opportunity to respond; and (3) if it is
asserted that counsel's handling of the case
involved a violation of ethical or legal
responsibilities, a complaint against the
attorney filed with disciplinary authorities
or, in the alternative, an explanation for why
such a complaint has not been filed.
Pineda, 908 F.3d at 839 n.2 (quoting García, 821 F.3d at 180 n.2);
see Lozada, 19 I. & N. Dec. at 639.
Here, the petitioner admits that he did not comply with
the Lozada requirements. He nonetheless assails the BIA's
disposition of his ineffective assistance of counsel claim on two
grounds. We briefly discuss each ground.
To begin, the petitioner seizes upon the BIA's reference
in Lozada to a "motion to reopen or reconsider," 19 I. & N. Dec.
at 637, and argues that the Lozada requirements do not apply to
ineffective assistance claims broached for the first time on
"direct appeal." This is whistling past the graveyard: as the
BIA implicitly recognized, the petitioner's claim was (for present
purposes) analogous to a motion to reopen the proceedings before
the immigration court. Cf. Falae v. Gonzáles, 411 F.3d 11, 14
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(1st Cir. 2005) (explaining that the BIA properly treated motion
to remand as motion to reopen because the petitioner sought to
return to immigration court to pursue adjustment of status). Here,
moreover, the petitioner provides no plausible support for his
self-serving assertion that Lozada should be limited to motions to
reopen or reconsider.
If an unsuccessful petitioner wishes to bring forward an
ineffective assistance claim on direct review rather than on a
motion to reopen, there is no reason to allow him to forgo
providing the BIA with the information that it needs to assess
such a claim. The BIA has applied Lozada broadly to ineffective
assistance claims of all stripes, including claims raised for the
first time before the BIA. See, e.g., Pineda, 908 F.3d at 839.
This is sound practice: the Lozada requirements are designed to
give the BIA sufficient information to inform its decision without
resorting to an evidentiary hearing. See Saakian, 252 F.3d at 26.
Such a design operates with equal efficacy in any procedural
posture in which an ineffective assistance of counsel claim may
arise. We thus hold that the Lozada requirements apply four-
square to the petitioner's ineffective assistance claim and that
the BIA did not err in evaluating the petitioner's claim through
the lens of those requirements.1
1 We note in passing that the petitioner's reliance on the
standard for ineffective assistance of counsel claims limned in
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The remaining ground on which the petitioner relies is
similarly unpersuasive. Citing BIA decisions in removal
proceedings commenced outside the First Circuit, he contends that
the allegedly ineffective assistance of his counsel was so
egregious as to warrant a "plain on its face" exception to the
Lozada requirements. This circuit, though, has disavowed any such
blanket exception "in favor of a case-by-case assessment of whether
the BIA's application of Lozada was arbitrary." García, 821 F.3d
at 181. Following this approach, we have consistently upheld BIA
denials of ineffective assistance of counsel claims where, as here,
aliens have simply ignored the Lozada requirements without good
cause. See, e.g., id. at 181 n.4.
The Lozada requirements are not perfect, but they create
a useful framework for assessing the viability of most ineffective
assistance of counsel claims. Given the petitioner's utter failure
to so much as attempt to comply with any of the Lozada requirements
either before the BIA or this court, there is no principled way to
say that the BIA's rejection of his ineffective assistance claim
Strickland v. Washington, 466 U.S. 668 (1984), is misplaced. The
Strickland standard derives from the Sixth Amendment and governs
ineffective assistance claims in criminal cases. See id. at 684-
85. Aliens are not entitled to the protections of the Sixth
Amendment in removal proceedings. See Conteh v. Gonzales, 461
F.3d 45, 55 (1st Cir. 2006). Instead, claims of ineffective
assistance in removal proceedings implicate the Due Process Clause
of the Fifth Amendment. See Guerrero-Santana v. Gonzales, 499
F.3d 90, 93 (1st Cir. 2007).
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was arbitrary. This is particularly true in light of the
petitioner's failure to offer anything resembling a plausible
explanation for his failure to satisfy the Lozada requirements.
We need go no further. For the reasons elucidated above,
the petition for judicial review is
Denied.
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