Douglas Hernandez-Ortez v. Eric Holder, Jr. , 741 F.3d 644 ( 2014 )

Case: 12-60962 Document: 00512518906 Page: 1 Date Filed: 01/31/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-60962 January 31, 2014
Lyle W. Cayce
DOUGLAS ESTID HERNANDEZ-ORTEZ, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Douglas Estid Hernandez-Ortez petitions for review of the order of the
Board of Immigration Appeals (BIA) dismissing his appeal from the final order
of removal entered by the immigration judge (IJ). The BIA dismissed
Hernandez-Ortez’s appeal for lack of jurisdiction based upon its finding that
Hernandez-Ortez waived his right to appeal, and it denied Hernandez-Ortez’s
claim of ineffective assistance of counsel based upon its determination that
Hernandez-Ortez had not served his former counsel with his complaint and
given his former counsel an opportunity to respond as required by Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
Case: 12-60962 Document: 00512518906 Page: 2 Date Filed: 01/31/2014
No. 12-60962
I.
Hernandez-Ortez is a native-citizen of El Salvador who first entered the
United States on an unknown date. Between 2002 and 2008 he was convicted
of several crimes including domestic assault. In September 2011, the
Department of Homeland Security initiated removal proceedings against
Hernandez-Ortez by filing a Notice to Appear. Hernandez-Ortez, represented
by counsel, conceded that he was removable for failing to be properly admitted
or paroled into the country. In June 2012, a hearing was held to consider a
request by Hernandez-Ortez to cancel removal. His counsel and an interpreter
were physically present at that meeting, while Hernandez-Ortez participated
via televideo. During the hearing his counsel informed the IJ that Hernandez-
Ortez no longer sought cancellation of removal, but instead sought voluntary
departure or withdrawal of his application for admission into the country.
Hernandez-Ortez made no objection to his attorney’s statements.
The IJ denied his request to withdraw his application for admission to
the United States and ordered that he be removed from the country. The IJ
asked counsel whether Hernandez-Ortez accepted the decision or whether he
reserved the right to appeal. His counsel responded that “[b]ased on [his]
client’s wishes[,] [they would] accept.” The IJ’s order indicated that
Hernandez-Ortez waived his right to appeal.
Hernandez-Ortez filed a pro se appeal to the BIA alleging that his
counsel’s ineffective assistance caused him to unwillingly waive appeal. He
attached two documents to his brief: (1) an affidavit from him evidencing the
circumstances of his counsel’s alleged ineffectiveness, and (2) a copy of a
complaint made to the Louisiana Attorney Disciplinary Board (the “LADB”)
concerning his former counsel.
The BIA rendered a decision dismissing Hernandez-Ortez’s appeal for
lack of jurisdiction. It determined from the record that he had waived his right
2
Case: 12-60962 Document: 00512518906 Page: 3 Date Filed: 01/31/2014
No. 12-60962
to appeal through his counsel and that the IJ’s order acknowledged this waiver.
The BIA declined, however, to hear the merits of his claim of ineffective
assistance of counsel because he had failed to meet one of the procedural
requirements found in Lozada, 19 I&N Dec. at 639. Specifically, the BIA found
that he had “neglected to inform his prior attorney of his accusations, so that
the attorney may respond.” Because he failed to meet this Lozada requirement,
the BIA lacked the jurisdiction to hear his claim of ineffective assistance of
counsel and dismissed his appeal. Hernandez-Ortez timely filed his Petition
for Review of the BIA’s order.
He argues that he complied with Lozada because he attached to his brief
an affidavit in which he avers that he served his former counsel with the
disciplinary complaint and a copy of his former counsel’s response to the
complaint. Citing precedent from the Ninth Circuit, he asserts that strict
compliance with the Lozada requirements is unnecessary. He maintains that
he cannot submit further proof that his former counsel was served with the
complaint because he has been moved to a different detention facility and
cannot obtain mail logs from his old detention facility.
II.
“The BIA lacks jurisdiction to review an immigration judge’s decision if
an alien has knowingly and intelligently waived his right to appeal.”
Kohwarien v. Holder, 635 F.3d 174, 179 (5th Cir. 2011). But the validity of a
waiver of appeal may be challenged and the BIA is “not divested of jurisdiction
where the waiver is not valid.” In re Patino, 23 I&N Dec. 74, 76 (2001). This
court reviews challenges to a final order of the BIA involving questions of law
de novo. Mai v. Gonzalez, 473 F.3d 162, 164 (5th Cir. 2006). Factual findings,
on the other hand, are reviewed under a substantial evidence standard. Girma
v. I.N.S., 283 F.3d 664, 666 (5th Cir. 2002). Here, the BIA found that
Hernandez-Ortez failed to comply with the procedural requirements in Lozada
3
Case: 12-60962 Document: 00512518906 Page: 4 Date Filed: 01/31/2014
No. 12-60962
and thus his challenge to his waiver of appeal failed. The BIA disposed of his
appeal on a purely legal question and this necessitates de novo review of the
BIA’s final order.
III.
As a preliminary matter, we cannot consider Hernandez-Ortez’s affidavit
and the response of his former counsel to Hernandez-Ortez’s complaint because
that evidence was not presented to the BIA. See 8 U.S.C. § 1252(b)(4)(A);
Goonsuwan v. Ashcroft, 252 F.3d 383, 391 n.15 (5th Cir. 2001). We also lack
jurisdiction to consider Hernandez-Ortez’s argument that he could not obtain
proof that he served his former counsel with his complaint because Hernandez-
Ortez did not raise this claim before the BIA. See Omari v. Holder, 562 F.3d
314, 318‒19 (5th Cir. 2009) (stating that this court lacks jurisdiction to hear
an issue that was not “first raise[d] before the BIA, either on direct appeal or
in a motion to reopen”).
Hernandez-Ortez’s final argument, that strict compliance with the
Lozada requirements is not necessary, is without merit. In Lozada, the BIA
established a set of procedural criteria that an “allegedly aggrieved
respondent” must satisfy before bringing a “motion based upon a claim of
ineffective assistance of counsel.” 19 I&N Dec. at 639. The BIA requires:
(1) an affidavit by the alien setting forth the relevant facts,
including the agreement with counsel regarding the alien’s
representation; (2) evidence that counsel was informed of the
allegations and allowed to respond, including any response; and
(3) an indication that . . . a complaint has been lodged with the
relevant disciplinary authorities, or an adequate explanation for
the failure to file such a complaint.
Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000) (citing Lozada, 19 I&N
Dec. at 639). Hernandez-Ortez cites a case from the Ninth Circuit in which it
held that a petitioner meets the second Lozada requirement when he files a
formal grievance with a state disciplinary authority because it “provid[es]
4
Case: 12-60962 Document: 00512518906 Page: 5 Date Filed: 01/31/2014
No. 12-60962
notice to the attorneys of [the petitioner’s] complaints against them.” Ray v.
Gonzalez, 439 F.3d 582, 589 (9th Cir. 2006).
The Ninth Circuit has adopted a different approach in applying the
Lozada requirements, and it will hear ineffective assistance of counsel claims
even when a petitioner has arguably failed to comply with them. See
Rodriguez-Lariz v. I.N.S., 282 F.3d 1218, 1227 (9th Cir. 2002) (holding that
where the record “itself demonstrates the legitimacy of petitioners’ ineffective
assistance of counsel[,]” there is no “need technically to comply with Lozada”);
Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1125 (9th Cir. 2000) (holding that the
BIA “may not impose the Lozada requirements arbitrarily” and that failure to
comply may be excused where “diligent efforts to obtain materials necessary
for meeting the Lozada standard” were made); Castillo-Perez v. I.N.S., 212
F.3d 518, 526 (9th Cir. 2000) (“While the requirements of Lozada are generally
reasonable, they need not be rigidly enforced when their purpose is fully served
by other means.”).
We think that Lozada makes clear that the second requirement is only
met when counsel is informed of the charge “before allegations of ineffective
assistance . . . are presented to the BIA.” 19 I&N Dec. at 639 (emphasis added).
In Hernandez-Ortez’s case, he did not offer sufficient proof to show that his
attorney was informed or had a reasonable opportunity to respond before the
allegations were presented in his appeal brief to the BIA; nor does he offer any
adequate reason that his failure to follow the rules should be excused.
IV.
So we hold that, through counsel, Hernandez-Ortez clearly waived his
right to appeal at the conclusion of the proceedings before the IJ. Although
Hernandez-Ortez contends that his waiver of appeal was involuntary based
upon the ineffectiveness of his counsel, he has failed to show he met the
procedural requirements of Lozada. Thus the BIA was entitled to enforce his
5
Case: 12-60962 Document: 00512518906 Page: 6 Date Filed: 01/31/2014
No. 12-60962
waiver and summarily dismiss Hernandez-Ortez’s appeal for lack of
jurisdiction.
PETITION FOR REVIEW DENIED.
6