Ana Martan-Robinson v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2023
• Docket: 18-72881
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANA ISABEL MARTAN-ROBINSON, No. 18-72881 19-73002 Petitioner, Agency No. A092-445-357 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 10, 2023** Phoenix, Arizona

Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.

Petitioner Ana Isabel Martan-Robinson, a native and citizen of Mexico,

petitions for review of decisions of the Board of Immigration Appeals (“BIA”)

dismissing her appeal of a removal order and denying her motion to reopen

proceedings. We have jurisdiction under 8 U.S.C. § 1252. See Garcia v. Lynch,

* 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). 798 F.3d 876, 879–881 (9th Cir. 2015) (holding that 8 U.S.C. § 1252(a)(2)(C) does

not bar our review of the denial of a continuance); Bravo-Bravo v. Garland, 54

F.4th 634, 638 (9th Cir. 2022) (holding that our jurisdiction to review a denial of a

motion to reopen is limited to determining whether the BIA or IJ erred in

concluding that the IJ lacked jurisdiction). We deny the petition for review.

1. The record reflects that Martan-Robinson never requested a

continuance from the IJ so that she could seek post-conviction relief in the district

court. Her argument that the IJ violated her due process rights by not ordering a

continuance sua sponte is unpersuasive.

2. Martan-Robinson’s argument that she was denied effective assistance

of counsel in her immigration proceedings in violation of due process is similarly

unpersuasive. We review de novo claims of Fifth Amendment due process

violations in immigration proceedings. Castillo-Perez v. INS, 212 F.3d 518, 523

(9th Cir. 2000).

As an initial matter, Martan-Robinson did not comply with the procedural

requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and any alleged

ineffective assistance is not plain on the face of the record. See Tamang v. Holder,

598 F.3d 1083, 1090–91 (9th Cir. 2010) (failure to satisfy Lozada requirements

was fatal to ineffective assistance of counsel claim where ineffectiveness was not

plain on the face of the record).

2 18-72881 Further, without any evidence from Martan-Robinson herself concerning her

interactions with her criminal defense lawyer or immigration attorney, and no

indication that any petition for post-conviction relief was filed, we cannot conclude

that she endured fundamentally unfair proceedings or that her immigration

attorney’s actions affected the outcome. See Lara-Torres v. Ashcroft, 383 F.3d

968, 973 (9th Cir. 2004) (holding that, to establish a due process violation, a

petitioner must show fundamentally unfair proceedings and prejudice from

counsel’s actions).

3. Martan-Robinson’s argument that the Notice to Appear she received,

which lacked information about the date, time, and location of the initial hearing,

could not confer jurisdiction over the removal proceedings is foreclosed by United

States v. Bastide-Hernandez, 39 F.4th 1187, 1190–93, 1191 n.6 (9th Cir. 2022) (en

banc) (ruling that defects in a Notice to Appear “have no bearing on an

immigration court’s adjudicatory authority”), cert. denied, No. 22-6281, 2023 WL

350056 (U.S. Jan. 23, 2023).

PETITION DENIED.

3 18-72881