Cristina Martinez De Estrada v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2019
• Docket: 15-73503
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISTINA GUADALUPE MARTINEZ DE No. 15-73503 ESTRADA, Agency No. A094-195-429 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 7, 2019** San Francisco, California

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Cristina Guadalupe Martinez de Estrada, a native and citizen of El Salvador,

petitions for review of the Board of immigration Appeals’ order denying her

motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. §

1252. We review for abuse of discretion the denial of a motion to reopen.

* 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). Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We grant in part, deny in

part, and dismiss in part the petition for review, and remand to the BIA for further

proceedings consistent with this decision.

We grant the petition on Martinez de Estrada’s claim that the BIA abused its

discretion in denying Martinez de Estrada’s motion to reopen as untimely, and in

holding that she was not entitled to equitable tolling based on her claim that she

received ineffective assistance of counsel. First, a review of the record reflects

that, contrary to the BIA’s finding, Martinez de Estrada did in fact substantially

comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988). Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013). A fair

reading of Martinez de Estrada’s Exhibits B and C indicate that she (1) provided an

appropriate sworn declaration detailing the allegations against former counsel, (2)

notified him of her specific allegations of ineffective representation, and (3) lodged

a complaint with the California State Bar. Although her Exhibits B and C were not

attached in the record to the letter to counsel, the letter references “Enclosures (2)”.

We can only conclude that the “Enclosures (2)” were Exhibits B and C. Second,

the agency failed to provide any explanation in support of its determination that

petitioner was not prima facie eligible for an adjustment of status, and failed to

address Martinez de Estrada’s argument that she would be eligible for a waiver of

her convictions under 8 U.S.C. § 1182(h). See, e.g., Tadevosyan v. Holder, 743

2 15-73503 F.3d 1250, 1252-53 (BIA abuses its discretion when it fails to provide a reasoned

explanation for its actions). Moreover, the agency did not have the benefit of this

court’s recent decision in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), which

held that a Temporary Protected Status recipient is considered “inspected and

admitted” when determining the recipient’s eligibility for adjustment of status.

We deny the petition for review on Martinez de Estrada’s claims that the

BIA abused its discretion by holding that Martinez de Estrada failed to establish

ineffective assistance of counsel for her attorney’s failure to appeal denial of her

applications for asylum, NACARA relief, and TPS. See Correa-Rivera v. Holder,

706 F.3d 1128, 1133 (9th Cir. 2013) (to establish prejudice from ineffective

assistance of counsel, petitioner must show that the outcome may have been

different had counsel raised the argument on appeal).

We dismiss the petition for review in part because we lack jurisdiction to

consider the following unexhausted contentions: (1) that the immigration judge

failed to advise Martinez de Estrada of her apparently eligibility for cancellation of

removal; and (2) that Martinez de Estrada was prejudiced by prior counsel’s failure

to appeal the aggravated felony ruling and denial of asylum on the merits and to

argue that she had established good moral character for NACARA eligibility. See

Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (court lacks jurisdiction to

consider legal claims not presented to the agency in alien’s proceedings).

3 15-73503 We reject as unsupported by the record Martinez de Estrada’s contention

that the immigration judge failed to advise her of her apparent eligibility for

adjustment of status.

On remand the agency is directed to consider Martinez de Estrada’s motion

to reopen in light of this court’s decision in Ramirez v. Brown, infra.

PETITION GRANTED in part, DENIED in part; DISMISSED in part;

REMANDED. Each party shall bear its own costs.

4 15-73503