Lilialdo Gabino Mejia v. Pamela Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2025
• Docket: 16-70693
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED OCT 28 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LILIALDO GABINO MEJIA, No. 16-70693

Petitioner, Agency No. A044-578-330

v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted October 24, 2025** San Francisco, California

Before: PAEZ, BEA, and FORREST, Circuit Judges.

Petitioner Lilialdo Gabino Mejia (“Gabino Mejia”) is a native of Mexico and

lawful permanent resident of the United States who seeks review of a decision of

the Board of Immigration Appeals (“BIA”) denying his motion to reopen his

removal proceedings based on a claim of ineffective assistance of counsel. We

have jurisdiction under 8 U.S.C. § 1252. We review BIA decisions on a motion to

* 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 reopen for abuse of discretion. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th

Cir. 2002). “The BIA abuses its discretion when it acts arbitrarily, irrationally, or

contrary to the law, and when it fails to provide a reasoned explanation for its

actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir. 2014) (internal

quotations and citation omitted). “To properly act within its discretion, the BIA

must give some ‘indication that it considered all of the evidence and claims

presented by the petition.’” Singh v. Garland, 117 F.4th 1145, 1150 (9th Cir.

2024) (quoting Avagyan v. Holder, 646 F.3d 672, 681 (9th Cir. 2011)). We review

claims of ineffective assistance of counsel de novo. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We review findings of fact regarding counsel’s

performance for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1024 (9th

Cir. 2004).

1. Gabino Mejia does not dispute that his motion was untimely filed.

Instead, Gabino Mejia claims the statutory filing deadline for his motion should be

equitably tolled based on ineffective assistance of counsel. See Iturribarria v. INS,

321 F.3d 889, 898-99 (9th Cir. 2003) (equitable tolling applies in ineffective

assistance of counsel cases). To bring a motion to reopen immigration proceedings

based on ineffective assistance of counsel, Gabino Mejia must comply with the

requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Reyes v.

without oral argument. See Fed. R. App. P. 34(a)(2).

2 Ashcroft, 358 F.3d 592, 596 (9th Cir. 2004).

2. Gabino Mejia admits that he did not comply with Lozada’s requirements.1

Gabino Mejia recognizes that he did not “adequately” explain what occurred

between him and prior counsel, arguing it was impossible to do so without his

client file. Gabino Mejia might have had his file if he had contacted his prior

counsel and given them time to respond. He did not. Finally, Gabino Mejia admits

that he “never made [] formal complaint[s]” against his former attorneys despite

“hav[ing] been advised to make such [] complaint[s] against [them].” Gabino

Mejia’s assertion that he could not file formal complaints because he was

“extremely anxious and depressed” is insufficient to excuse him from this

requirement. See Lo v. Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003) (“A primary

goal of . . . filing or satisfactorily explaining the non-filing of a complaint . . . is to

protect against the collusive use by aliens and their counsel of ineffective

assistance of counsel claims to achieve delay.”).

3. Although Gabino Mejia is correct when he states that strict compliance

with Lozada is not always required where the ineffective assistance of counsel is

clear, the BIA correctly determined that Gabino Mejia provides insufficient

evidence to conclude that his former counsels failed to perform with sufficient

1 Gabino Mejia claims he could not comply with Lozada because “time was of the essence,” yet he recognizes that his motion is already time and number-barred, which is why he seeks equitable tolling.

3 competence.

4. Central to Gabino Mejia’s ineffective assistance of counsel claim against

Attorney Ramiro Castro (“Castro”) is Castro’s admission of factual allegations in

the Notice to Appear (“NTA”), i.e., Gabino Mejia’s prior convictions involved

cocaine. Yet, the record is devoid of information that establishes the falsity of

Castro’s admission. Gabino Mejia himself attended the hearing in which Castro

made the admission and has never denied the veracity of Castro’s admission. The

record also establishes that Gabino Mejia’s 2003 charge involved cocaine. Contra

Santiago-Rodriguez v. Holder, 657 F.3d 820, 835-36 (9th Cir. 2011) (petitioner

was prejudiced by counsel’s ineffective assistance where counsel admitted to

factual allegations without first informing petitioner or any factual basis for doing

so). As for Gabino Mejia’s other claims that his “requests to [Castro] for

clarification or status were met with anger and intimidation,” Castro “failed to . . .

object to and oppose the very basis of the removal proceedings,” and Castro

withdrew because “he could not go before the [BIA]” the record either does not

support or directly contradicts them. Although the appeal failed, Castro did appeal

the Immigration Judge’s ruling to the BIA “that the expungement of [Gabino

Mejia’s] two drug possession convictions had no legal effect in vitiating the

immigration consequences of said convictions.” These two convictions were the

basis for the NTA. Thus, Gabino Mejia’s claim that Castro did not “oppose the

4 very basis of the removal proceedings” is incorrect.

5. As for Attorney Hector Cavazos (“Cavazos”), Gabino Mejia fails to

establish, or even argue, that Cavazos’s suspension prejudiced his claim. None of

the charges of misconduct against Cavazos concerned Gabino Mejia’s matter. Nor

does the record establish that Cavazos ever worked on Gabino Mejia’s matter.

Further, it appears Gabino Mejia agreed to have Attorney Emily Chrim (“Chrim”)

represent him and that he was satisfied with her performance as Gabino Mejia

states that he “was hoping Attorney Chrim would continue to represent him.”

Further, Chrim appears to have raised the relevant legal facts and law in her motion

to reopen Gabino Mejia’s immigration proceedings, which the BIA considered and

rejected. Contra Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) (granting

claim because petitioner’s “lawyer failed, without any reason, to timely file the

application in spite of having told [petitioner] that he did file it, and that

[petitioner] would have been prima facie eligible had the application been filed”);

Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224-25 (9th Cir. 2002) (granting claim

because petitioners’ representative “missed the deadline for filing the application

for suspension of deportation and then lied about having done so”).

PETITION DENIED.