Liliana Hobbs v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LILIANA HOBBS, AKA Liliana No. 18-71288
Hernandez-Patino,
Agency No. A095-129-709
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2022**
San Francisco, California
Before: SILER,*** M. SMITH, and BRESS, Circuit Judges.
Petitioner Liliana Hobbs petitions for review of the Board of Immigration
Appeals’ (BIA) decision dismissing her ineffective assistance of counsel claim. She
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
also seeks review of the BIA’s decision affirming the Immigration Judge’s (IJ) order
denying her a waiver of inadmissibility pursuant to Section 212(h) of the
Immigration and Nationality Act. For the following reasons, we deny in part and
dismiss in part the petition.
In 2015, Hobbs, a Mexican citizen, was charged with removability as an alien
convicted of an aggravated felony and a visa overstay. See generally 8 U.S.C. §§
1227(a)(1)(B), (a)(2)(A)(iii). Hobbs conceded the charges and sought an adjustment
of status under 8 U.S.C. § 1255 and a waiver of inadmissibility under 8 U.S.C. §
1182(h). Hobbs and her U.S. citizen husband testified about how their family,
including her five-month-old and eighteen-year-old sons, would be affected if she
were removed. Her mother and siblings are United States citizens, as well. After
the hearing, Hobbs obtained new counsel, but the IJ denied counsel’s motion to
continue the proceedings and closed the record. The IJ found Hobbs failed to show
her husband or children would suffer extreme hardship if she is removed.
Hobbs appealed the IJ’s order to the BIA and also claimed her due process
rights were violated when her previous counsel failed to submit hardship evidence
about her mother’s “mental state.” The BIA affirmed the IJ’s order denying Hobbs’s
application for waiver of inadmissibility and construed her due process claim as a
claim for ineffective assistance of counsel and denied it as well. Hobbs petitioned
for review.
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We have jurisdiction to review questions of law and constitutional claims
raised upon a petition for review. 8 U.S.C. § 1252(a)(2)(D). We review denials of
motions to reopen for abuse of discretion and review constitutional claims and
questions of law de novo. Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir.
2005); see also Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013)
(“Appeals asserting ineffective assistance claims . . . are effectively motions to
reopen.”). Where, as here, the BIA conducts a de novo review of the IJ’s decision,
“our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.” Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015) (citation
omitted).
Hobbs’s ineffective assistance claim is barred because she did not comply
with the procedural requirements set out in Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988). And because the administrative record is silent about whether her
counsel knew anything about her mother’s “mental state,” we decline to excuse
Hobbs’s failure to comply with Lozada. See Reyes v. Ashcroft, 358 F.3d 592, 597
(9th Cir. 2004) (“[W]e have never excused a petitioner’s failure to [comply with
Lozada] where, as here, the facts underlying the petitioner’s claim were not ‘plain
on the face of the administrative record.’” (citation omitted)). Hobbs also passingly
complains about other errors her counsel allegedly made but never explains how
they prejudiced her claim for waiver of inadmissibility. See Martinez-Hernandez v.
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Holder, 778 F.3d 1086, 1088 (9th Cir. 2015) (“A claim of ineffective assistance of
counsel requires a showing of inadequate performance and prejudice.”).
Finally, we lack jurisdiction to review the agency’s determination that Hobbs
failed to show extreme hardship to her qualifying relatives for purposes of her
request for a waiver of inadmissibility. See Mendoza v. Holder, 623 F.3d 1299,
1301–02 (9th Cir. 2010). And to the extent Hobbs challenges how the BIA weighed
the evidence, we also lack jurisdiction to review those findings. Id. While we retain
jurisdiction to ensure the BIA considered the relevant evidence, we “generally
presume[]” it did. Szonyi v. Barr, 942 F.3d 874, 897 (9th Cir. 2019). Here, the BIA
clearly recognized the emotional hardship to Hobbs’s relatives, “in particular the
infant child,” and therefore considered the relevant evidence before exercising its
discretion. Hobbs essentially argues the BIA abused its discretion in weighing the
evidence, but a petitioner may not create jurisdiction “simply by cloaking an abuse
of discretion argument in constitutional [or legal] garb.” Mendez-Castro v. Mukasey,
552 F.3d 975, 978 (9th Cir. 2009) (citation omitted).
The petition is DENIED IN PART and DISMISSED IN PART.
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