Gonzalez-Padilla v. Garland ( 2021 )

20-1808
Gonzalez-Padilla v. Garland
BIA
Hochul, IJ
A209 408 087
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 the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 28th day of September, two thousand
4 twenty-one.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 RICHARD J. SULLIVAN,
9 Circuit Judges,
10 BRIAN M. COGAN,*
11 District Judge.
12 _____________________________________
13
14 OSSCAR GONZALEZ-PADILLA,
15 Petitioner,
16
17 v. 20-1808
18
19 MERRICK B. GARLAND, UNITED
* Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York,
sitting by designation.
1 STATES ATTORNEY GENERAL,
2 Respondent.
3 _____________________________________
4
5 FOR PETITIONER: Jose Perez, Esq., Law Offices of Jose Perez,
6 P.C., Syracuse, NY.
7
8 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
9 General; John S. Hogan, Assistant Director;
10 Lindsay Corliss, Trial Attorney, Office of
11 Immigration Litigation, United States
12 Department of Justice, Washington, DC.
13
14 UPON DUE CONSIDERATION of this petition for review of a Board of
15 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
16 AND DECREED that the petition for review is DENIED.
17 Petitioner Osscar Gonzalez-Padilla, a native and citizen of Mexico, seeks
18 review of a decision of the BIA affirming the decision of an Immigration Judge
19 (“IJ”) deeming his application for cancellation of removal abandoned and ordering
20 his removal to Mexico. In re Osscar Gonzalez-Padilla, No. A 209 408 087 (B.I.A. May
21 12, 2020), aff’g No. A 209 408 087 (Immig. Ct. Buffalo June 4, 2018). We assume
22 the parties’ familiarity with the underlying facts and procedural history.
23 Gonzalez-Padilla argues that his application for cancellation of removal
24 should be reinstated, and his order of removal vacated, because he received
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1 ineffective assistance of counsel in his agency proceedings. To prevail on an
2 ineffective assistance claim, however, a noncitizen must satisfy the procedural
3 requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988),
4 which directs that the petitioner submit:
5 (1) an affidavit setting forth in detail the agreement with former
6 counsel concerning what action would be taken and what counsel did
7 or did not represent in this regard; (2) proof that the alien notified
8 former counsel of the allegations of ineffective assistance and allowed
9 counsel an opportunity to respond; and (3) if a violation of ethical or
10 legal responsibilities is claimed, a statement as to whether the alien
11 filed a complaint with any disciplinary authority regarding counsel’s
12 conduct and, if a complaint was not filed, an explanation for not doing
13 so.
14
15 Esposito v. INS, 987 F.2d 108, 110–11 (2d Cir. 1993). A noncitizen “who has failed
16 to comply substantially with the Lozada requirements . . . forfeits h[is] ineffective
17 assistance of counsel claim in this Court.” Jian Yun Zheng v. Dep’t of Just., 409 F.3d
18 43, 47 (2d Cir. 2005).
19 Here, the BIA did not err in rejecting Gonzalez-Padilla’s ineffective
20 assistance claim because he himself admitted that he did not comply with any of
21 the Lozada requirements. And while we may excuse strict compliance with the
22 Lozada requirements where an ineffective assistance claim is “clear on the face of
23 the record,” Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007), that is not the case
3
1 here. To the contrary, the record before us does not provide any indication as to
2 why Gonzalez-Padilla’s application was not filed, much less demonstrate that
3 counsel was at fault for that failure. Gonzalez-Padilla has thus forfeited his
4 ineffective assistance claim by failing to substantially comply with the procedural
5 requirements set forth in Lozada. See Jian Yun Zheng, 409 F.3d at 47.
6 For the foregoing reasons, the petition for review is DENIED. †
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk of Court
† On June 26, 2020, Gonzalez-Padilla moved for an order staying his removal until this Court
issued its final decision in his petition for review. Doc. No. 11. As the Court has now denied
the petition for review, the June 26, 2020 motion for stay of removal is also denied as moot.
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