Monge Ramirez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 1, 2023
• Docket: 21-1221
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YESENIA ELIZABETH MONGE No. 21-1221 RAMIREZ; KATHERINE NAYELI DIAZ Agency Nos. MONGE; ALCIDES USIEL NAVARRO A208-309-899 MONGE; ISRAEL LISANDRO A208-309-900 CASTELLANOS CORDOVA, A208-309-901 A208-309-913 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 27, 2023**

Before: OWENS, LEE, and BUMATAY, Circuit Judges

Yesenia Ramirez and her family, natives and citizens of El Salvador, seek

review of the Board of Immigration Appeals’ (“BIA”) summary dismissal of their

appeal from the denial of their applications for asylum, withholding of removal,

* 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). and protection under the Convention Against Torture (“CAT”). Petitioners also

seek review of the BIA’s denial of their motion to reopen. We have jurisdiction

under 8 U.S.C. § 1252. Reviewing questions of law de novo, Padilla v. Ashcroft,

334 F.3d 921, 923 (9th Cir. 2003), and the denial of a motion to reopen for abuse

of discretion, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), we deny

the petition.

1. The BIA did not violate Petitioners’ due process rights when it

summarily dismissed their appeal. When appealing from an Immigration Judge’s

(“IJ”) decision, aliens must “provide meaningful guidance to the BIA by

informing it of the issues contested on appeal; a generalized and conclusory

statement about the proceedings before the IJ does not suffice.” Nolasco-Amaya

v. Garland, 14 F.4th 1007, 1012 (9th Cir. 2021) (simplified). Aliens can also

provide the reasons supporting the appeal “either in a separate brief or on the

Notice of Appeal itself.” Id.

Petitioners never filed a brief. And their notice of appeal stated only that

the IJ erred in finding that they had not established their claims for asylum and

withholding of removal and erred in denying CAT relief. Those statements “[do]

not indicate which facts were in contention and how the IJ misinterpreted the

evidence.” Toquero v. INS, 956 F.2d 193, 196 (9th Cir. 1992). Because the notice

of appeal failed to state a specific error, the BIA’s summary dismissal did not

violate Petitioners’ due process rights. See Singh v. Ashcroft, 361 F.3d 1152,

1157 (9th Cir. 2004) (“In cases where the petitioner’s description of the grounds

2 21-1221 for appeal in the Notice of Appeal lacks the requisite specificity, we have

consistently upheld the BIA’s exercise of this authority”).

2. The BIA did not abuse its discretion in denying Petitioners’ motion for

failure to substantially comply with the procedural requirements set out in Matter

of Lozada, 19 I. & N. Dec. 637 (BIA 1988). To reopen based on an ineffective

assistance of counsel claim, movants must first inform counsel of the allegations

and give him “the opportunity to respond.” Id. at 639. Generally, the BIA does

not abuse its discretion by denying a motion to reopen based on a failure to

comply with this requirement. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir.

2000).

In this case, Petitioners argue that they complied with Lozada. But they

failed to notify their previous counsel of their ineffective assistance allegation—

one of Lozada’s requirements. 19 I & N. Dec. at 639. Petitioners’ argument that

they provided notice lacks support in the record. And neither their statement nor

their complaint to the state bar shows that they provided notice to counsel. See

Reyes v. Ashcroft, 358 F.3d 592, 598-99 (9th Cir. 2004) (stating that petitioner’s

carbon copy of former counsel on bar complaint was not sufficient notice).

While we have excused noncompliance with Lozada when it is “obvious

and undisputed” from the record that counsel was ineffective, Reyes, 358 F.3d at

597, Petitioners do not argue that we should depart from Lozada’s requirements

here.

PETITION DENIED.

3 21-1221