Portillo-Castro v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 30, 2013
Elisabeth A. Shumaker
Clerk of Court
WULFRANO PORTILLO-CASTRO,
Petitioner,
v. No. 13-9539
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.
Wulfrano Portillo-Castro petitions for review of an order by the Board of
Immigration Appeals (BIA) denying his motion to reconsider the BIA’s decision
affirming the denial of his request for cancellation of removal. Exercising
jurisdiction pursuant to 8 U.S.C. § 1252, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
Mr. Portillo-Castro, a native and citizen of Mexico, illegally entered this
country in 1992. In June 2007, the Department of Homeland Security (DHS)
initiated removal proceedings against him, alleging that he was present in the
United States without being admitted or paroled. Mr. Portillo-Castro admitted the
allegations and conceded removability. He then filed an application for cancellation
of removal. An alien may be eligible for cancellation of removal if he meets certain
requirements, including that he has not been convicted of a crime involving moral
turpitude (CIMT). See 8 U.S.C. § 1229b(b)(1)(C). The government asserted that
Mr. Portillo-Castro was ineligible for cancellation of removal because he had a 2003
conviction for domestic violence and he had failed to show that it was not a CIMT.
The immigration judge (IJ) agreed with the government, denied the application, and
ordered Mr. Portillo-Castro removed from the United States.
Mr. Portillo-Castro appealed the IJ’s decision. The BIA agreed with the IJ’s
determination and dismissed the appeal. Mr. Portillo-Castro did not petition for
review of the BIA’s decision; instead, he hired new counsel and filed a motion to
reconsider. The BIA denied the motion and this petition for review followed.
II.
We review for abuse of discretion the BIA’s denial of a motion to reconsider.
See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).
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A.
In his motion to reconsider, Mr. Portillo-Castro argued that he was prejudiced
in his proceedings before the IJ and BIA because he was represented by incompetent
counsel, as evidenced by his first attorney’s disbarment by the Oklahoma Supreme
Court. He sought a remand to the IJ for a new hearing on his application for
cancellation of removal with his new attorney. He did not offer any specific
information about his first attorney’s performance other than to assert that his
application for cancellation of removal “on its face, is a tribute to [counsel’s]
incompetence.” Admin. R. at 16. He also asserted that the requirements in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), for bringing claims of ineffective assistance
of counsel, were “not applicable as previous counsel was disbarred while the
underlying appeal was pending.” Admin. R. at 16.
Under Lozada, “[a] motion based upon a claim of ineffective assistance of
counsel should be supported by an affidavit of the allegedly aggrieved respondent
attesting to the relevant facts.” 19 I. & N. Dec. at 639. Former counsel must be
informed of the allegations and allowed the opportunity to respond before the
allegations are presented to the BIA. Id. And, “the motion should reflect whether a
complaint has been filed with appropriate disciplinary authorities regarding such
representation, and if not, why not.” Id.
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In its order denying the motion to reconsider on this issue, the BIA explained
that:
[Counsel’s] disbarment alone does not cure [Mr. Portillo-Castro’s]
unexplained failure to follow any of the procedures for making a timely
ineffective assistance of counsel claim as set forth in Matter of Lozada,
19 I&N Dec. 637 (BIA 1988). Evidence that [his] former counsel was
disciplined does not prove that [he] was prejudiced by the actions of his
counsel in this case.
Admin. R. at 3. The BIA further explained that Mr. Portillo-Castro’s “claim of
ineffective assistance of counsel lacks the necessary details we need to evaluate his
argument,” and also noted that he had not offered any legal authority to support his
position that his attorney’s disbarment rendered the Lozada requirements inapplicable
to his case. Id. The BIA further noted that the “Fifth Circuit has rejected a ‘flexible’
approach to the Lozada requirements argued for by [Mr. Portillo-Castro].” Id. The
BIA declined to reconsider its decision or remand the case to the IJ, explaining that
Mr. Portillo-Castro “ha[d] not presented any evidence to show that his prior counsel
incompetently represented him, that his prior counsel’s performance adversely
affected the outcome of his removal hearing, or that he was denied an opportunity to
fully present his case.” Id. at 4.
On appeal, Mr. Portillo-Castro asserts that he was denied a full and fair
hearing on his application for cancellation of removal because he was represented by
ineffective counsel. He asserts that his conviction was not a CIMT under the relevant
Oklahoma statutes covering simple non-aggravated assault and misdemeanor
domestic assault and battery, which involve only a mere touching. He contends that
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“but for the failure of [his] counsel to provide the required documents to the
Immigration Court, a full, fair, and meaningful examination of all the appropriate
evidence would have been conducted and the result would have been different.” Pet.
Br. at 17. We may not consider this argument, however, because it was not presented
to the BIA. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1236-37 (10th Cir. 2010)
(explaining that alien must exhaust his administrative remedies before this court may
entertain his argument). As the BIA explained in its denial order, Mr. Portillo-Castro
argued that his attorney’s disbarment alone demonstrated that he received ineffective
assistance of counsel. In his motion to reconsider, he did not attempt to explain, as
he does now on appeal, how his counsel’s deficient performance prejudiced him, and
therefore the BIA did not have the opportunity to consider that argument. “[A]n
alien must present the same specific legal theory to the BIA before he or she may
advance it in [this] court.” Id. at 1237; see also Torres de la Cruz v. Maurer, 483
F.3d 1013, 1018 (10th Cir. 2007) (holding that petitioner’s general assertions in
motion to reopen were not sufficient to exhaust “specific issue” for which he sought
review from this court when it had not been presented to the BIA for consideration).
We therefore lack authority to entertain Mr. Portillo-Castro’s new argument
regarding his counsel’s deficient performance and related prejudice.
Mr. Portillo-Castro next contends that the BIA should not have required strict
compliance with Lozada because the BIA applied Fifth Circuit law when it should
have applied Tenth Circuit law. The government concedes that the BIA should have
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applied Tenth Circuit law,1 but it asserts that any error is harmless because the result
in this case would be no different if the case were remanded back to the BIA. See
Nazaraghaie v. INS, 102 F.3d 460 (10th Cir. 1996) (applying harmless error analysis
in immigration context).
Although we have yet to decide whether to require strict compliance with
Lozada, we have concluded that there was no abuse of discretion in the BIA’s denial
of a motion to reopen where the petitioner alleged ineffective assistance of counsel
but failed to comply with any of the Lozada requirements. See Tang v. Ashcroft,
354 F.3d 1192, 1196-97 (10th Cir. 2003). The holding in Tang controls the result in
this case. Mr. Portillo-Castro, like the petitioner in Tang, made no attempt to comply
with any of the Lozada requirements. Instead, Mr. Portillo-Castro claimed—without
citation to any authority—that Lozada does not apply when an attorney is disbarred.
Accordingly, if the case were remanded to the BIA to apply Tenth Circuit law, it
would reach the same result.
Mr. Portillo-Castro also contends that he could not strictly comply with the
Lozada requirement to file a bar complaint because his attorney had already been
1
The proceedings before the IJ occurred in Oklahoma City, Oklahoma, within
the jurisdiction of the Tenth Circuit. But, according to the government, the
Administrative Control Court for the immigration court in Oklahoma City is located
in Dallas, Texas. As a result, the caption to the IJ’s decision states “Dallas
Immigration Court.” See Admin. R. at 222. As the government explains, “it appears
that the Board may have cited Fifth Circuit law under the mistaken belief that
immigration proceedings were conducted in Texas, which is within the jurisdiction of
the Fifth Circuit.” Resp. Br. at 18 n.6.
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disbarred. His attorney’s disbarment, however, does not excuse his non-compliance
with the Lozada requirements. Mr. Portillo-Castro does not explain how he was
prevented from complying with the first requirement to submit an affidavit with
the relevant facts, or how he was prevented from complying with the second
requirement to notify his counsel of the allegations against him and give him an
opportunity to respond. See Tang, 354 F.3d at 1196 (outlining Lozada’s
requirements). Moreover, Lozada does not require the filing of a bar complaint in all
situations as Mr. Portillo-Castro appears to believe; instead, the Lozada motion
“should reflect whether a complaint has been filed with appropriate disciplinary
authorities regarding [the deficient] representation, and if not, why not.” Id. (internal
quotation marks omitted) (emphasis added). Mr. Portillo-Castro could easily have
fulfilled the third Lozada requirement by indicating that he did not file a complaint
with the Oklahoma Supreme Court because his attorney had already been disbarred.
Under these circumstances, we see no abuse of discretion in the BIA’s decision to
deny the motion to reconsider on this issue.
B.
Mr. Portillo-Castro next contends that the BIA erred in denying his request to
reconsider the agency’s determination that he has a conviction for a CIMT. In his
motion to reconsider, Mr. Portillo-Castro asserted that the IJ and BIA erroneously
concluded that he had a CIMT conviction when there is an absence of documents
related to his conviction in the administrative record. In denying the motion to
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reconsider on this issue, the BIA found that Mr. Portillo-Castro was raising the same
or similar arguments that were raised in his previous appellate brief. The BIA
reaffirmed the IJ’s conclusion that Mr. Portillo-Castro “did not meet his burden to
prove that his Oklahoma criminal conviction for domestic assault and battery was not
a CIMT.” Admin. R. at 4. On appeal, Mr. Portillo-Castro continues to argue that he
does not have a CIMT conviction, speculating that he was convicted under Oklahoma
statutes for either simple assault or misdemeanor domestic assault and battery that
only involve an act of mere touching.
An alien who has conceded removability bears “the burden of establishing that
he or she is eligible for any requested benefit or privilege and that it should be
granted in the exercise of discretion.” Garcia v. Holder, 584 F.3d 1288, 1289
(10th Cir. 2009) (internal quotation marks omitted). Mr. Portillo-Castro admitted
that he was arrested in 2003 for domestic assault and battery for hitting his wife, and
there is a document from the Tulsa County Sheriff’s Office confirming that
information. He also submitted a letter confirming his attendance at 24 sessions in
the counseling program at Domestic Violence Intervention Services. He failed,
however, to submit documentary evidence related to his conviction, including the
specific statute of conviction and any sentencing information.2 We have previously
2
Although Mr. Portillo-Castro argues on appeal that his first attorney was
ineffective for failing to submit evidence related to his conviction, his current
attorney did not submit any evidence in the motion to reconsider related to his
conviction or explain why the documents could not be obtained.
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held that where the record is inconclusive as to whether an alien committed a CIMT,
the alien has failed to demonstrate eligibility for cancellation of removal. See id. at
1290 (“Because it is unclear from [petitioner’s] record of conviction whether he
committed a CIMT, we conclude he has not proven eligibility for cancellation or
removal . . . .”). Accordingly, we see no abuse of discretion in the BIA’s decision to
deny the motion to reconsider on this issue.
III.
For the foregoing reasons, we deny the petition for review.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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