NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 24-2012 ____________
MAGNO JOSELITO GUERRERO-GUERRERO; SONIA ESPERANZA TAPIA- CUESTA; JOFFRE ALEXANDER GUERRERO-TAPIA, Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________
On Petition for Review of a Decision of the Board of Immigration Appeals A220-604-710, A220-971-478, A220-971-479 Immigration Judge: Steve Mannion ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 21, 2025
Before: CHAGARES, Chief Judge, BIBAS, and FISHER, Circuit Judges.
(Filed: February 24, 2025) ____________
OPINION* ____________
FISHER, Circuit Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Petitioner Magno Guerrero-Guerrero, his wife, and their son left Ecuador and
applied for asylum and withholding of removal in the United States. The Immigration
Judge denied relief and the Board of Immigration Appeals (BIA) denied their appeal and
subsequent motion for reconsideration.1 Guerrero-Guerrero appeals the denial of the
reconsideration motion. He argues that the BIA abused its discretion by requiring rigid
adherence to the procedural requirements for an ineffective-assistance-of-counsel claim
and by refusing to reconsider its determination that the Ecuadorian government was not
unwilling or unable to protect him. We will deny the petition because the ineffective-
assistance claim fails on the merits and the BIA did not abuse its discretion when it
denied reconsideration of the Ecuadorian government’s willingness or ability to protect
Guerrero-Guerrero and his family.
We review an order by the BIA denying a motion to reconsider for an abuse of
discretion2 and the underlying ineffective-assistance claim de novo.3 The BIA abuses its
discretion “when it acts in a manner that is ‘arbitrary, irrational, or contrary to the law.’”4
“[D]enying a motion for reconsideration predicated on either new evidence or legal
1 An order by the BIA denying a motion to reconsider constitutes a final order. Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012). We have jurisdiction under 8 U.S.C. § 1252 (judicial review of orders of removal). The petitions have been consolidated. We refer to the family collectively as “Guerrero-Guerrero.” 2 Alexander-Mendoza v. Att’y Gen., 55 F.4th 197, 209 (3d Cir. 2022). 3 We review an ineffective-assistance claim de novo because it is a procedural due process claim. See Fadiga v. Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007). 4 Castro, 671 F.3d at 365 (quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)).
2 arguments that could have been raised earlier” is not an abuse of discretion.5 Neither is
“declining to revise . . . prior factual findings” where the record does not compel a
contrary conclusion.6
Guerrero-Guerrero’s first argument relates to his ineffective-assistance claim. A
petitioner advancing such a claim must comply with the requirements laid out in In re
Lozada:7 (1) “provide an affidavit attesting to the relevant facts” of the agreement with
former counsel; (2) “inform former counsel of the allegations and allow” counsel an
opportunity to respond; and (3) where “prior counsel’s handling of the case involved a
violation of ethical or legal responsibilities,” either file a bar complaint or explain the
failure to do so.8 However, failure to file a bar complaint or provide an explanation “does
not necessarily sink” a claim as long as the policy concerns on which the third prong is
based—such as policing the conduct of the immigration bar, preventing collusion
between counsel and their clients, and highlighting expected standards of conduct—have
been served.9 Guerrero-Guerrero argues that, although he neither filed a bar complaint
nor provided a reasonable excuse for failing to do so, the policy goals underlying the
third requirement were satisfied. The Government disputes this and claims that this
5 Alexander-Mendoza, 55 F.4th at 210. 6 Id. 7 In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). 8 Rranci v. Att’y Gen., 540 F.3d 165, 172 (3d Cir. 2008) (quoting Lozada, 19 I. & N. Dec. at 639). 9 Id. at 174.
3 argument was “a new legal theory” that was improperly raised in a motion to reconsider
as it could have previously been raised before the BIA.10
However, the dispositive issue here is not Guerrero-Guerrero’s compliance with
the Lozada requirements, but the fact that his ineffective-assistance claim fails on the
merits. “Under Lozada, to prevail on an ineffective-assistance claim, an alien must
demonstrate not only that counsel’s assistance was ineffective, but also that he was
prejudiced by counsel’s poor performance.”11 We agree with the BIA that Guerrero-
Guerrero’s ineffective-assistance claim does not establish “a reasonable likelihood that
the outcome of the case would have been different but for the alleged ineffective
assistance of former counsel.”12 In both its denial of the motion to reconsider and its
denial of his initial appeal, the BIA held that Guerrero-Guerrero’s ineffective-assistance
claim failed on the merits because he “[did] not dispute that the police responded” to the
burglary and “that he did not seek assistance from the authorities when he was threatened
or when his wife was . . . assaulted and robbed.”13 Although Guerrero-Guerrero argues
that the BIA ignores facts “essential . . . to demonstrate his case was otherwise winnable
but for the actions of prior counsel,” he merely reiterates the same facts that the BIA
considered twice before.14 Because Guerrero-Guerrero failed to establish that his
10 Gov’t Br. 19. 11 Zheng v. Gonzales, 422 F.3d 98, 107 (3d Cir. 2005). 12 JA 211. 13 JA 211; see also JA 226. 14 Petitioner’s Br. 13.
4 previous counsel erred as to the “dispositive issue of government’s ability or willingness
to protect,” there is not a reasonable likelihood that his case would have had a different
result.15
Guerrero-Guerrero also argues the BIA abused its discretion by refusing to
reconsider the finding that the Ecuadorian government was neither unwilling nor unable
to assist him. To qualify for asylum, a petitioner must demonstrate that the government
either “condoned the [persecution] or at least demonstrated a complete helplessness to
protect” the victims.16 Guerrero-Guerrero argues that this is a disjunctive test, requiring
that he prove either an inability or an unwillingness. Guerrero-Guerrero also claims that
in making this determination the BIA disregarded four distinct interactions he had with
the police and proper consideration would have yielded a different result.
We are not convinced. First, Guerrero-Guerrero’s argument that he need only
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 24-2012 ____________
MAGNO JOSELITO GUERRERO-GUERRERO; SONIA ESPERANZA TAPIA- CUESTA; JOFFRE ALEXANDER GUERRERO-TAPIA, Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________
On Petition for Review of a Decision of the Board of Immigration Appeals A220-604-710, A220-971-478, A220-971-479 Immigration Judge: Steve Mannion ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 21, 2025
Before: CHAGARES, Chief Judge, BIBAS, and FISHER, Circuit Judges.
(Filed: February 24, 2025) ____________
OPINION* ____________
FISHER, Circuit Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Petitioner Magno Guerrero-Guerrero, his wife, and their son left Ecuador and
applied for asylum and withholding of removal in the United States. The Immigration
Judge denied relief and the Board of Immigration Appeals (BIA) denied their appeal and
subsequent motion for reconsideration.1 Guerrero-Guerrero appeals the denial of the
reconsideration motion. He argues that the BIA abused its discretion by requiring rigid
adherence to the procedural requirements for an ineffective-assistance-of-counsel claim
and by refusing to reconsider its determination that the Ecuadorian government was not
unwilling or unable to protect him. We will deny the petition because the ineffective-
assistance claim fails on the merits and the BIA did not abuse its discretion when it
denied reconsideration of the Ecuadorian government’s willingness or ability to protect
Guerrero-Guerrero and his family.
We review an order by the BIA denying a motion to reconsider for an abuse of
discretion2 and the underlying ineffective-assistance claim de novo.3 The BIA abuses its
discretion “when it acts in a manner that is ‘arbitrary, irrational, or contrary to the law.’”4
“[D]enying a motion for reconsideration predicated on either new evidence or legal
1 An order by the BIA denying a motion to reconsider constitutes a final order. Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012). We have jurisdiction under 8 U.S.C. § 1252 (judicial review of orders of removal). The petitions have been consolidated. We refer to the family collectively as “Guerrero-Guerrero.” 2 Alexander-Mendoza v. Att’y Gen., 55 F.4th 197, 209 (3d Cir. 2022). 3 We review an ineffective-assistance claim de novo because it is a procedural due process claim. See Fadiga v. Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007). 4 Castro, 671 F.3d at 365 (quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)).
2 arguments that could have been raised earlier” is not an abuse of discretion.5 Neither is
“declining to revise . . . prior factual findings” where the record does not compel a
contrary conclusion.6
Guerrero-Guerrero’s first argument relates to his ineffective-assistance claim. A
petitioner advancing such a claim must comply with the requirements laid out in In re
Lozada:7 (1) “provide an affidavit attesting to the relevant facts” of the agreement with
former counsel; (2) “inform former counsel of the allegations and allow” counsel an
opportunity to respond; and (3) where “prior counsel’s handling of the case involved a
violation of ethical or legal responsibilities,” either file a bar complaint or explain the
failure to do so.8 However, failure to file a bar complaint or provide an explanation “does
not necessarily sink” a claim as long as the policy concerns on which the third prong is
based—such as policing the conduct of the immigration bar, preventing collusion
between counsel and their clients, and highlighting expected standards of conduct—have
been served.9 Guerrero-Guerrero argues that, although he neither filed a bar complaint
nor provided a reasonable excuse for failing to do so, the policy goals underlying the
third requirement were satisfied. The Government disputes this and claims that this
5 Alexander-Mendoza, 55 F.4th at 210. 6 Id. 7 In re Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988). 8 Rranci v. Att’y Gen., 540 F.3d 165, 172 (3d Cir. 2008) (quoting Lozada, 19 I. & N. Dec. at 639). 9 Id. at 174.
3 argument was “a new legal theory” that was improperly raised in a motion to reconsider
as it could have previously been raised before the BIA.10
However, the dispositive issue here is not Guerrero-Guerrero’s compliance with
the Lozada requirements, but the fact that his ineffective-assistance claim fails on the
merits. “Under Lozada, to prevail on an ineffective-assistance claim, an alien must
demonstrate not only that counsel’s assistance was ineffective, but also that he was
prejudiced by counsel’s poor performance.”11 We agree with the BIA that Guerrero-
Guerrero’s ineffective-assistance claim does not establish “a reasonable likelihood that
the outcome of the case would have been different but for the alleged ineffective
assistance of former counsel.”12 In both its denial of the motion to reconsider and its
denial of his initial appeal, the BIA held that Guerrero-Guerrero’s ineffective-assistance
claim failed on the merits because he “[did] not dispute that the police responded” to the
burglary and “that he did not seek assistance from the authorities when he was threatened
or when his wife was . . . assaulted and robbed.”13 Although Guerrero-Guerrero argues
that the BIA ignores facts “essential . . . to demonstrate his case was otherwise winnable
but for the actions of prior counsel,” he merely reiterates the same facts that the BIA
considered twice before.14 Because Guerrero-Guerrero failed to establish that his
10 Gov’t Br. 19. 11 Zheng v. Gonzales, 422 F.3d 98, 107 (3d Cir. 2005). 12 JA 211. 13 JA 211; see also JA 226. 14 Petitioner’s Br. 13.
4 previous counsel erred as to the “dispositive issue of government’s ability or willingness
to protect,” there is not a reasonable likelihood that his case would have had a different
result.15
Guerrero-Guerrero also argues the BIA abused its discretion by refusing to
reconsider the finding that the Ecuadorian government was neither unwilling nor unable
to assist him. To qualify for asylum, a petitioner must demonstrate that the government
either “condoned the [persecution] or at least demonstrated a complete helplessness to
protect” the victims.16 Guerrero-Guerrero argues that this is a disjunctive test, requiring
that he prove either an inability or an unwillingness. Guerrero-Guerrero also claims that
in making this determination the BIA disregarded four distinct interactions he had with
the police and proper consideration would have yielded a different result.
We are not convinced. First, Guerrero-Guerrero’s argument that he need only
prove unwillingness or inability is inappropriate for a motion to reconsider, as this legal
argument was previously available to him.17 Second, the BIA did not abuse its discretion
in denying the motion to reconsider because the facts in the record do not compel a
contrary conclusion.18 Guerrero-Guerrero tries to “fill the evidentiary gap” by arguing
15 JA 211. 16 Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 84 (3d Cir. 2021) (citation omitted). 17 Alexander-Mendoza, 55 F.4th at 210. 18 See id.
5 that he had further interactions with the police that did not result in any assistance.19
However, Guerrero-Guerrero “admit[s]” that his statements are “somewhat confusing”
concerning the timeframes of his assaults, interactions with the police, and the police’s
failure to assist.20 What is clear is that the police responded to his call for help after the
burglary—though they were unable to locate and arrest a perpetrator—and that Guerrero-
Guerrero did not make another report against his wife’s attacker. After responding to
Guerrero-Guerrero’s report of the burglary, the police also engaged with his
neighborhood safety association efforts. The record does not suggest that the Ecuadorian
government failed to respond or did so inadequately, nor that it will fail to do so in the
future. As the evidence does not compel a conclusion contrary to the BIA’s decision and
it is improper to reargue previous arguments or raise previously available ones, the BIA
did not abuse its discretion in denying the motion to reconsider.
For the reasons set forth above, we will deny the petition for review.
19 Petitioner’s Br. 12 (quoting Doe v. Att’y Gen., 956 F.3d 135, 146 (3d Cir. 2020)). 20 Petitioner’s Br. 14.