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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15001
Non-Argument Calendar
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Agency No. A216-428-014
BERERLYN VELASQUEZ-GONZALEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 22, 2019)
Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Bererlyn Velasquez-Gonzalez appeals a decision of the Board of
Immigration Appeals (BIA) affirming the immigration judge’s denial of her
application for asylum, withholding of removal, and Convention Against Torture
(CAT) relief. She also appeals the BIA’s denial of her motion to reopen and
remand her case to the immigration court, which she made based on the alleged
ineffective assistance of her prior counsel during her initial immigration court
proceedings. We hold that we lack jurisdiction to consider Velasquez-Gonzalez’s
merits-based appeal. We also hold that the BIA did not abuse its discretion in
rejecting her motion to reopen and remand.
I
In March 2018, U.S. Customs and Border Patrol detained Velasquez-
Gonzalez, a Venezuelan citizen, after she attempted to enter the United States at
the Atlanta airport without a valid entry document. The Department of Homeland
Security then served Velasquez-Gonzalez with a notice to appear, charging her
with removability under INA § 212(a)(7)(A)(i)(I),
8 U.S.C. § 1182(a)(7)(A)(i)(I).
Velasquez-Gonzalez appeared before an immigration judge, who sustained
the charge of removability. Velasquez-Gonzalez then filed an application for
asylum, withholding of removal, and CAT protection, asserting persecution based
on her political opinion. At her merits hearing, Velasquez-Gonzalez testified that
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she had twice been robbed in Venezuela by a government-backed gang. She stated
that she feared she would face further persecution if she were forced to return.
In July 2018, the immigration judge issued an oral decision denying
Velasquez-Gonzalez’s applications and ordering her removed to Venezuela.
According to the immigration judge, Velasquez-Gonzalez provided no evidence to
corroborate her claims of past persecution and—even if she had—those claims
would not rise to the level of harm required to constitute persecution.
Velasquez-Gonzalez then filed a notice of appeal to the Board of
Immigration Appeals through new counsel. On appeal, Velasquez-Gonzalez did
not contest the merits of the immigration judge’s decision, but argued that her
application for asylum and CAT protection should be reopened and remanded to
the immigration court due to the ineffective assistance of her prior counsel, whom
Velasquez-Gonzalez alleged failed to properly advise her or present her
corroborating evidence to the immigration judge.
The Board of Immigration Appeals (BIA) affirmed the immigration judge’s
decision based on two holdings. First, the BIA agreed with the immigration judge
that Velasquez-Gonzalez did not present evidence of past persecution in Venezuela
and had not demonstrated a sufficient likelihood of future persecution based on her
political opinion. Second, the BIA refused to remand Velasquez-Gonzalez’s claim
to the immigration court because she had not satisfied the procedural requirements
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for ineffective-assistance-of-counsel claims, which the BIA had laid out in Matter
of Lozada,
19 I. & N. Dec. 637 (B.I.A. 1998). Velasquez-Gonzalez appealed that
decision to this court.
II
Velasquez-Gonzalez makes two arguments on appeal. First, she alleges that
the BIA improperly affirmed the immigration judge’s determination that she had
not demonstrated a well-founded fear of persecution. According to Velasquez-
Gonzalez, the immigration judge’s decision rested on an improper adverse
credibility determination and an erroneous review of the record. Second,
Velasquez-Gonzalez argues that the BIA improperly applied the Lozada standard
and should have remanded the case to the immigration court based on the
ineffective assistance of her prior counsel. We consider each argument in turn.
A
First, Velasquez-Gonzalez’s merit-based claims. We review de novo our
jurisdiction over a petition for review. Amaya-Artunduaga v. U.S. Att’y Gen.,
463
F.3d 1247, 1250 (11th Cir. 2006). We lack jurisdiction to review any claim as to
which the petitioner has failed to exhaust his or her administrative remedies.
Id. If
an alien does not raise a claim before the BIA, therefore, we lack jurisdiction to
consider that claim in the alien’s petition for review. Id.; Immigration and
Nationality Act § 242(d)(1),
8 U.S.C. § 1252(d)(1).
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Velasquez-Gonzalez failed to present to the BIA either of the merits-based
claims she now presents to us—in particular, her claims that the immigration
judge’s conclusion that she had not presented sufficient evidence of persecution
was based on an improper adverse credibility determination and an erroneous
review of the record. In fact, in her brief before the BIA, Velasquez-Gonzalez
stated the opposite of those claims, noting that “it is eviden[t] on the face of the
record [that] the immigration judge’s decision denying [Velasquez-Gonzalez’s
requested] relief was not erroneous[,] as [her] asylum filing was devoid of any
supporting documentation that would have supported a meritorious claim of
asylum.” Motion to Reopen and Remand at 8 (emphasis added).
In her appeal to the BIA, Velasquez-Gonzalez sought a remand of her case
to the immigration court, not a determination that the immigration court had
improperly weighed the evidence before it. The fact that the BIA chose to review
and affirm the immigration judge’s merits determination sua sponte does not
relieve Velasquez-Gonzalez of the obligation to present her merits-based claims to
the BIA before presenting them to us on appeal. Amaya-Artunduaga,
463 F.3d at
1250–51. The administrative-exhaustion doctrine exists to ensure that the agency
has a “full opportunity to consider a petitioner’s claims” and to “allow the BIA to
compile a record which is adequate for judicial review.”
Id. at 1250 (quotations
omitted). And, as we have held, “[r]eviewing a claim that has not been presented
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to the BIA, even when the BIA has considered the underlying issue sua sponte,
frustrates these objectives.”
Id.
We hold, therefore, that we lack jurisdiction to review Velasquez-
Gonzalez’s arguments challenging the merits of her application for asylum,
withholding of removal, and CAT protection.
B
Next, we consider Velasquez-Gonzalez’s appeal of the BIA’s rejection of
her motion to reopen and remand the case to the immigration court, which she
made based on her prior counsel’s alleged ineffective assistance. By now it is well
established that aliens enjoy the right to the effective assistance of counsel in
deportation proceedings. Mejia Rodriguez v. Reno,
178 F.3d 1139, 1146 (11th Cir.
1999). An alien alleging ineffective assistance of counsel may seek to have his or
her case reopened and remanded to the immigration court if the alien can establish
that his or her counsel’s performance was “deficient to the point that it impinged
the fundamental fairness of the hearing.”
Id. (internal quotation marks and citation
omitted). We review the denial of a motion to reopen an immigration proceeding
for an abuse of discretion. Al Najjar v. Ashcroft,
257 F.3d 1262, 1302 (11th Cir.
2001).
In Matter of Lozada, the BIA set forth three procedural requirements for
filing a motion for relief from an order of removal based on ineffective assistance
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of counsel, which must be met prior to BIA review: (1) the motion must be
supported by an affidavit from the aggrieved party “attesting to the relevant facts”;
(2) the “former counsel must be informed of the allegations and allowed the
opportunity to respond,” and “[a]ny subsequent response from counsel, or report of
counsel’s failure or refusal to respond, should be submitted with the motion”; and
(3) the motion must “reflect whether a complaint has been made with appropriate
disciplinary authorities,” and if not, why not. 19 I. & N. Dec. at 639. We’ve
previously held that the BIA “does not abuse its discretion by filtering ineffective
assistance of counsel claims through the screening requirements of Lozada.”
Gbaya v. U.S. Att’y Gen.,
342 F.3d 1219, 1223 (11th Cir. 2003). A petitioner must
at least substantially comply with the Lozada requirements.
Id. at 1222.
We hold that the BIA did not abuse its discretion in holding that Velasquez-
Gonzalez failed to substantially comply with the Lozada requirements. Although
Velasquez-Gonzalez filed a complaint against her former attorney with the Georgia
State Bar, she appears to concede that she never directly notified him of her
allegations or informed him of the BIA proceedings—she only asserts that he had
notice and an opportunity to respond to her Georgia State Bar complaint. We
agree with the Seventh Circuit that such notice was insufficient. See Marinov v.
Holder,
687 F.3d 365, 369 (7th Cir. 2012).
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The purpose of Lozada’s notice requirement is to ensure that the BIA has
enough information to “assess[] the substantial number of claims of ineffective
assistance of counsel that come before [it].” Lozada, 19 I. & N. Dec. at 639. By
requiring the party alleging ineffective assistance to inform the prior attorney of his
or her allegation, Lozada’s second requirement gives the prior attorney the
opportunity to present his or her side of the story to the BIA.
Velasquez-Gonzalez argues that filing a complaint with the Georgia State
Bar was sufficient because the Bar’s rules require that it inform attorneys about
any complaint made against them. The notice provided by the state bar, however,
was ill-suited to serve the purposes underlying Lozada’s notice requirement. Even
assuming—which may be a stretch—that such notice was received by Velasquez-
Gonzalez’s prior attorney in time for him to respond to the BIA proceedings, it’s
unlikely that the state bar would have informed him that the BIA proceedings even
existed (Velasquez-Gonzalez’s complaint said nothing about them). And even if
(somehow) it did, Velasquez-Gonzalez could not in good faith report to the BIA on
her prior attorney’s “subsequent response” or “failure or refusal to respond”—as
Lozada requires—because those responses would go to the Georgia State Bar, not
her. 19 I. & N. Dec. at 639.
The purpose of the Lozada requirements is not simply to ensure that
attorneys are informed of their misconduct; it is to ensure that attorneys have the
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opportunity to provide the BIA with additional facts. Because Velasquez-
Gonzalez’s purported notice was insufficient to serve that purpose, we hold that
she did not substantially comply with the Lozada requirements. Accordingly, we
affirm the BIA’s decision to reject Velasquez-Gonzalez’s motion to reopen and
remand.
III.
For the foregoing reasons, we hold that we lack jurisdiction to hear
Velasquez-Gonzalez’s merits-based claims. We also hold that the BIA did not
abuse its discretion in rejecting Velasquez-Gonzalez’s motion to reopen and
remand. PETITION DENIED IN PART AND DISMISSED IN PART.
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