Hector Castillo-Saldana v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2021
• Docket: 13-70720
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HECTOR ALEJANDRO CASTILLO- No. 13-70720 SALDANA, AKA Francisco Lopez, Agency No. A205-315-289 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Hector Alejandro Castillo-Saldana, a native and citizen of Mexico, petitions

for review of the Board of Immigration Appeals’ order dismissing his appeal from

an immigration judge’s (“IJ”) decision denying his application for cancellation of

removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

* 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). questions of law, including claims of due process violations due to ineffective

assistance of counsel, and we review for abuse of discretion the BIA’s denial of a

motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).

We deny in part and dismiss in part the petition for review.

The BIA did not err or violate Castillo-Saldana’s right to due process in

applying the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637

(BIA 1988), to Castillo-Saldana’s ineffective assistance of counsel claim. See

Correa-Rivera v. Holder, 706 F.3d 1128, 1130-31 (9th Cir. 2013) (where petitioner

improperly used an appeal to the BIA as the vehicle to allege ineffective assistance

of counsel, the appeal was effectively a motion to reopen); Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process challenge).

The BIA did not abuse its discretion in declining to reopen based on ineffective

assistance of counsel where Castillo-Saldana failed to comply with Lozada and

where the alleged ineffectiveness was not plain on the face of the record. See

Tamang v. Holder, 598 F.3d 1083, 1089-91 (9th Cir. 2010) (holding that failure to

satisfy Matter of Lozada requirements was fatal to an ineffective assistance of

counsel claim where ineffectiveness was not plain on the face of the record);

Mohammed, 400 F.3d at 791 (explaining that BIA ruling on a motion to reopen

will be reversed “only if the Board acted arbitrarily, irrationally, or contrary to

law”).

2 13-70720 The BIA also did not err or violate Castillo-Saldana’s right to due process in

denying his ineffective assistance of counsel claim where Castillo-Saldana failed to

establish prejudice from the alleged ineffective assistance of former counsel. See

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an

ineffective assistance of counsel claim a petitioner must demonstrate prejudice);

Lata, 204 F.3d at 1246; see also Pereida v. Wilkinson, 141 S.Ct. 754, 766 (2021)

(an applicant for relief from removal cannot establish eligibility where a conviction

record is inconclusive as to which elements of a divisible statute formed the

offense).

We lack jurisdiction to consider Castillo-Saldana’s contention that the IJ

failed to advise him of his eligibility for relief. See Barron v. Ashcroft, 358 F.3d

674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented

to the agency).

The stay of removal remains in place until the issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 13-70720