Liliana Hobbs v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 6, 2022
• Docket: 18-71288
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

2 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.

3 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.