Jael De Leon-Reynoso v. William Barr, U. S. ( 2019 )

Case: 18-60796 Document: 00515214247 Page: 1 Date Filed: 11/26/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 26, 2019
No. 18-60796
Summary Calendar Lyle W. Cayce
Clerk
JAEL ROSAURA DE LEON-REYNOSO; NAHOMY YANIRA BAMACA-DE
LEON; CRISTIAN JACOB BAMACA-DE LEON,
Petitioners
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A209 896 952, A209 896 950, A209 896 951
Before BENAVIDES, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Guatemalan national Jael Rosaura DeLeon-Reynoso petitions this court
for review of the dismissal by the Board of Immigration Appeals (BIA) of her
appeal from the order of the Immigration Judge (IJ) finding her and her two
minor children removable and its denial of her motion to remand. She
contends that the BIA erred in denying her motion to remand, renewing her
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60796 Document: 00515214247 Page: 2 Date Filed: 11/26/2019
No. 18-60796
claim that her failure to file a timely application for asylum was the result of
ineffective assistance. DeLeon urges that the BIA erroneously determined that
she had not complied with the procedural requirements for proceeding with an
ineffective assistance claim under Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988). She further asserts that she was substantially prejudiced because she
has a valid claim for asylum which the IJ failed to consider.
This court reviews the purely legal question whether DeLeon complied
with the procedural requirements of Lozada de novo. Hernandez-Ortez
v. Holder, 741 F.3d 644, 647 (5th Cir. 2014); Shaikh v. Holder, 588 F.3d 861,
863 (5th Cir. 2009). To support a claim of ineffective assistance during removal
proceedings, an alien must comply with the procedural requirements set forth
in Lozada and demonstrate that counsel’s actions resulted in substantial
prejudice. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).
As the BIA determined, although DeLeon filed an affidavit in support of
her ineffective-assistance claim, the affidavit is insufficient to satisfy the first
Lozada requirement because it fails to establish that Rodriguez actually
entered into an agreement to represent DeLeon or to take any action on her
behalf. Because DeLeon failed to submit a Lozada-compliant affidavit, the BIA
did not err when it rejected her ineffective assistance claim. See Hernandez-
Ortez, 741 F.3d at 647-48; see also Lozada, 19 I. & N. Dec. at 639. That being
so, this court need not consider DeLeon’s argument that her administrative
complaint was sufficient to comply with the third Lozada requirement or her
argument that she presented sufficient evidence to establish that she was
prejudiced by Rodriguez’s erroneous advice.
DeLeon additionally contends that the denial of the opportunity to file
an asylum application violated her due process rights, depriving her of a
meaningful opportunity to be heard and constituting a gross miscarriage of
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No. 18-60796
justice. However, DeLeon’s purported due-process claim is no more than a
restatement of her claim that she should be allowed to apply for asylum
because she received ineffective assistance from Rodriguez, which claim fails
for the reasons previously stated.
Inasmuch as DeLeon contends that the BIA’s decision amounts to a gross
miscarriage of justice, her argument is misplaced. Because the motion to
remand here involved an attempt to revisit an order in the same proceedings
rather than a collateral attack, the gross-miscarriage-of-justice standard is
inapplicable. See Mejia v. Whitaker, 913 F.3d 482, 488 (5th Cir. 2019).
Accordingly, the petition for review is DENIED.
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