Chen v. Garland

Case: 20-61111 Document: 00516174506 Page: 1 Date Filed: 01/20/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 20, 2022
No. 20-61111
Lyle W. Cayce
Summary Calendar Clerk
Xiu Hong Chen,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A203 559 455
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Xiu Hong Chen, a native and citizen of China, petitions this court for
review of a decision of the Board of Immigration Appeals (BIA) dismissing
her appeal from the Immigration Judge’s (IJ) denial of her motion to reopen.
Motions to reopen removal proceedings are disfavored, and the moving party
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-61111
bears a heavy burden. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th
Cir. 2006). This court reviews the denial of a motion to reopen under a
“highly deferential abuse of discretion standard.” Lara v. Trominski, 216
F.3d 487, 496 (5th Cir. 2000).
Chen asserts that the BIA erred in upholding the IJ’s findings that her
ineffective assistance claims failed due to her noncompliance with the
procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)
and that her waiver of her appellate rights was knowing and intelligent. She
also argues, for the first time, that the IJ erred in denying her motion to
reopen without addressing the new evidence she had presented supporting
her claim of forced sterilization. However, because Chen did not exhaust this
claim by raising it before the BIA, we lack jurisdiction to address it. See 8
U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009).
To the extent that Chen argues that she should be excused from strict
compliance with Lozada, her argument is without merit. Hernandez-Ortez v.
Holder, 741 F.3d 644, 647-48 (5th Cir. 2014); see also Rodriguez-Manzano v.
Holder, 666 F.3d 948, 953 (5th Cir. 2012). To the extent that she argues she
in fact satisfied the procedural requirements, the argument is equally
unavailing. Neither her nor her husband’s affidavit, alone or collectively,
detail with any specificity the scope of her arrangement with her attorney and
what actions he was to undertake on her behalf during the course of his
representation of her. See Lozada, 19 I. & N. Dec. at 639. Because Chen
failed to submit a Lozada-compliant affidavit, the BIA did not err when it
rejected her ineffective assistance of counsel claim based on her failure to
comply with Lozada’s procedural requirements. See Hernandez-Ortez, 741
F.3d at 647-48; Rodriguez-Manzano, 666 F.3d at 953; see also Gonzalez-Cantu
v. Sessions, 866 F.3d 302, 304-05 (5th Cir. 2017) (This court affirms the BIA’s
decision as long as “it is not capricious, without foundation in the evidence,
or otherwise so irrational that it is arbitrary rather than the result of any
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No. 20-61111
perceptible rational approach.” (quoting Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009))). That being so, we do not reach her argument that
her filing of a formal complaint against her attorney following the denial of
her motion to reopen by the IJ was sufficient to comply with the third Lozada
requirement.
Next, Chen renews her contention that her waiver of appeal was
unknowing and involuntary, complaining that it was induced by counsel, who
told her that her case would be dismissed as fraudulent if she appealed.
However, the record evidence does not compel a conclusion that the IJ erred
in finding that Chen’s waiver was knowing and voluntary. See Kohwarien
v. Holder, 635 F.3d 174, 178-179 (5th Cir. 2011). Inasmuch as Chen now
asserts, for the first time, that she required a more detailed explanation of her
right to appeal and the consequences of her waiver because she attended the
merits hearing via videoconference and because she was an uneducated and
unsophisticated litigant, we lack jurisdiction to consider her unexhausted
claim. See § 1252(d)(1); Omari, 562 F.3d at 318.
PETITION FOR REVIEW DENIED IN PART,
DISMISSED IN PART FOR LACK OF JURISDICTION.
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