Martinez Soriano v. Garland ( 2021 )

19-1841
Martinez Soriano v. Garland
BIA
Thompson, IJ
A073 548 354
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 20th day of May, two thousand twenty-one.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 MICHAEL H. PARK,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 ALBERTO MARTINEZ SORIANO,
14
15 Petitioner,
16
17 v. 19-1841
18
19 MERRICK B. GARLAND, UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Alberto Martinez Soriano, pro se,
26 Newburgh, NY.
27
28 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
29 Attorney General; Shelley R. Goad,
30 Assistant Director; Elizabeth Chapman,
31 Trial Attorney, Office of Immigration
32 Litigation, United States Department
33 of Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Alberto Martinez Soriano, a native and citizen of
6 Mexico, seeks review of a May 23, 2019 decision of the BIA,
7 dismissing as untimely his appeal of an October 26, 2018 order of
8 an Immigration Judge (“IJ”) pretermitting his application for
9 cancellation of removal and ordering him removed. In re Alberto
10 Martinez Soriano, No. A073 548 354 (B.I.A. May 23, 2019), aff’g
11 No. A073 548 354 (Immig. Ct. N.Y.C. Oct. 26, 2018). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history.
14 Under the circumstances, we review only the BIA’s decision
15 dismissing as untimely Martinez Soriano’s appeal of the IJ’s
16 decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
17 2005). The applicable standards of review are well established.
18 See Khan v. U.S. Dep’t of Justice, 494 F.3d 255, 259 (2d Cir. 2007)
19 (reviewing dismissal of appeal as untimely for abuse of
20 discretion); Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281,
21 288–90 (2d Cir. 2007) (reviewing factual findings for substantial
22 evidence and questions of law de novo); Nwozuzu v. Holder, 726
2
1 F.3d 323, 326–27 (2d Cir. 2013) (reviewing agency statutory
2 interpretation under Chevron U.S.A., Inc. v. Natural Res. Def.
3 Council, Inc., 467 U.S. 837, 842–44 (1984)).
4 It is undisputed that Martinez Soriano’s February 2019 appeal
5 to the BIA was untimely because it was filed more than 30 days
6 after the IJ’s October 2018 order of removal. See 8 C.F.R.
7 § 1003.38(b) (“The Notice of Appeal . . . shall be filed directly
8 with the Board . . . within 30 calendar days after
9 the . . . mailing of an Immigration Judge’s written decision.”);
10 see also Attipoe v. Barr, 945 F.3d 76, 79 (2d Cir. 2019). “[W]hile
11 under normal circumstances the BIA cannot hear late-filed
12 appeals,” Zhong Guang Sun v. U.S. Dep’t of Justice, 421 F.3d 105,
13 108 (2d Cir. 2005), it may equitably toll the filing period based
14 on ineffective assistance of counsel, see Attipoe, 945 F.3d at 82–
15 83. The BIA did not err in declining to excuse the untimely filing
16 based on Martinez Soriano’s ineffective assistance of counsel
17 claim.
18 To prevail on an ineffective assistance claim, an alien must
19 substantially comply with the procedures laid out in Matter of
20 Lozada, 19 I&N Dec. 637 (B.I.A. 1988), which requires (1) an
21 affidavit detailing what actions former counsel agreed to take,
22 (2) proof that counsel was notified of the allegations and allowed
3
1 to respond, and (3) a statement regarding whether a complaint was
2 filed with a disciplinary authority. See id. at 639; see also
3 Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46–47 (2d
4 Cir. 2005). Martinez Soriano complied with the first requirement
5 by submitting an affidavit laying out his agreement with counsel
6 as to at least one basis for his claim (counsel’s failure to oppose
7 pretermission) and the third requirement by submitting complaints
8 he filed, but he failed to comply with the second requirement by
9 showing that he informed counsel of the allegations and provided
10 an opportunity for response. The second requirement protects
11 against “the potential for abuse . . . apparent where no mechanism
12 exists for allowing former counsel, whose integrity or competence
13 is being impugned, to present his version of events if he so
14 chooses, thereby discouraging baseless allegations.” Lozada, 19
15 I&N Dec. at 639. Although we do not require “slavish adherence
16 to the requirements,” we have excused them only where a “claim of
17 ineffective assistance [was] clear on the face of the record,”
18 such as when counsel had been disbarred for similar claims of
19 ineffectiveness or admitted fault. Yi Long Yang v. Gonzales, 478
20 F.3d 133, 142–43 (2d Cir. 2007).
21 Because Martinez Soriano failed to comply with the Lozada
22 requirements, he forfeited his ineffective assistance of counsel
4
1 claim, see Jian Yun Zheng, 409 F.3d at 47, and the BIA did not err
2 in declining to excuse the untimely filing of his appeal, see Khan,
3 494 F.3d at 259. Accordingly, we do not reach the BIA’s
4 alternative dispositive determination that Martinez Soriano failed
5 to establish prejudice. See INS v. Bagamasbad, 429 U.S. 24, 25
6 (1976) (“As a general rule courts and agencies are not required to
7 make findings on issues the decision of which is unnecessary to
8 the results they reach.”); Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.
9 1994) (requiring showing of prejudice to state ineffective
10 assistance claim).
11 There is no merit to Martinez Soriano’s argument that the BIA
12 should have found his notice to appear defective under Pereira v.
13 Sessions, 138 S. Ct. 2105 (2018), because the notice did not
14 include a hearing date or time. In Pereira, the Supreme Court held
15 that the Immigration and Nationality Act unambiguously requires a
16 notice to appear to include a hearing time and place to trigger
17 the “stop-time rule,” 138 S. Ct. at 2113-20, which cuts off an
18 alien’s accrual of physical presence or residence for the purposes
19 of qualifying for cancellation of removal, see 8 U.S.C. § 1229b(a),
20 (b), (d)(1). Although Martinez Soriano applied for cancellation,
21 his length of residence and the application of the stop-time rule
22 were not at issue and he was denied relief on alternative grounds.
5
1 Accordingly, Pereira is not relevant to his case. Any argument
2 that his notice to appear did not vest jurisdiction in the
3 Immigration Court because it omitted a hearing date and time is
4 foreclosed by Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019).
5 Id. at 111–12.
6 For the foregoing reasons, the petition for review is DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
6