24-1230 Salazar-Asencio v. Bondi BIA Drucker, IJ A220 321 020/021/028/029
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of June, two thousand twenty- five.
PRESENT: JON O. NEWMAN, RICHARD J. SULLIVAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
DIEGO SALAZAR-ASENCIO, ERMINIA MADAI HENRIQUEZ-SALAZAR, DIEGO SALAZAR-HENRIQUEZ, HAZEL SALAZAR-HENRIQUEZ,
Petitioners,
v. 24-1230 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
FOR PETITIONER: Rosemarie A. Barnett, Law Office of Rosemarie Barnett, PLLC, Freeport, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Erica B. Miles, Assistant Director; Vanessa M. Otero, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Diego Salazar-Asencio, Erminia Madai Henriquez-Salazar, and
two of their minor children, natives and citizens of El Salvador, seek review of a
decision of the BIA denying their motion to reopen their removal proceedings. See
In re Salazar-Asencio, Nos. A220 321 020/021/028/029 (B.I.A. Apr. 5, 2024).
Petitioners also move for a stay of removal pending adjudication of this petition.
We assume the parties’ familiarity with the underlying facts and procedural
2 history.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008), and we review a
petitioner’s constitutional claims and questions of law, including claims of
ineffective assistance of counsel, de novo, see Luna v. Holder, 637 F.3d 85, 102 (2d Cir.
2011).
A “motion to reopen shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). In this case, the motion to reopen
was based on an assertion of ineffective assistance of counsel. A movant raising
an ineffective assistance of counsel claim must first comply with specific
procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.
1988). See Jian Yun Zheng v. U.S. Dep’t of Just., 409 F. 3d 43, 45 (2d Cir. 2005) (“[A]n
alien who has failed to comply substantially with the Lozada requirements in her
motion to reopen before the BIA forfeits her ineffective assistance of counsel claim
in this Court.”). Then, “[t]o demonstrate ineffective assistance of counsel, [a
movant] must show that counsel’s performance fell below an objective standard
3 of reasonableness and that he was prejudiced as a result of such deficient
performance.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023) (internal quotation
marks omitted).
Salazar-Asencio alleged that his former counsel failed to (1) keep in contact
with him or explain the strength of his case, (2) prepare him for his merits hearing
or explain why he would not be testifying, (3) submit updated country conditions
that would show El Salvador is still dangerous, (4) apply to the Department of
Homeland Security for prosecutorial discretion despite stating he would and
despite having Salazar-Asencio provide all documents to support such a request,
(5) file a brief to the BIA even though he was retained to do so, and (6) file a motion
to reopen as he had promised after the BIA dismissed Salazar-Asencio’s petition
for failure to file a brief.
The BIA did not err in finding that Salazar-Asencio fulfilled the Lozado
requirements only as to his claim regarding the failure to file a brief. He was
required to submit proof that “former counsel [was] informed of the allegations
and allowed the opportunity to respond.” Lozada 19 I. & N. Dec. at 639. Here,
Salazar-Asencio provided an affidavit stating that he filed a complaint with a New
4 York attorney grievance committee, see Cert. Admin. R. at 52, and that complaint
listed all six of his allegations of ineffective assistance, see id. at 126–28. However,
Salazar-Asencio did not attest that he served that complaint on former counsel, or
that counsel had an opportunity to respond to the allegations. Cf. Avendano Bonilla
v. McHenry, No. 23-7487, 2025 WL 313863, at *2 (2d Cir. Jan. 28, 2025) (Petitioner
“did not comply with the Lozada requirements because, while he filed a grievance
in New York with the Third Department’s Attorney Grievance Committee, he did
not inform his former counsel of his allegations or give her the opportunity to
respond.”).
Furthermore, the email from Salazar-Asencio’s current counsel to his former
counsel purporting to summarize their conversation discussing the claim of
ineffective assistance mentions only that they discussed the failure to file a brief
with the BIA. Salazar-Asencio’s argument that the BIA should have allowed him
to file an affirmation that his current counsel discussed all claims of ineffectiveness
with his former counsel is unpersuasive as there is no such affirmation in the
record or evidence that one exists. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of
appeals shall decide the petition only on the administrative record on which the
5 order of removal is based.”). In sum, because there is no evidence that former
counsel knew of any allegations of ineffective assistance of counsel except his
failure to file a brief to the BIA, the BIA did not err in declining to consider the
other allegations. See Lozada 19 I. & N. Dec. at 639; see also Jian Yun Zheng, 409 F.3d
at 45.
We find no error in the BIA’s conclusion that Salazar-Asencio failed to
establish prejudice from former counsel’s failure to file a brief on appeal to the
BIA. In order to establish ineffective assistance on the part of his former attorney,
Salazar-Asencio had to “show that, but for counsel’s unprofessional errors, there
is a reasonable probability the [agency] would have granted the relief [he]
requested.” Paucar, 84 F.4th at 80 (internal quotation marks omitted). A
reasonable probability “is demonstrated where a movant makes a prima facie
showing that, but for counsel’s ineffectiveness, he would have been eligible for
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24-1230 Salazar-Asencio v. Bondi BIA Drucker, IJ A220 321 020/021/028/029
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of June, two thousand twenty- five.
PRESENT: JON O. NEWMAN, RICHARD J. SULLIVAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
DIEGO SALAZAR-ASENCIO, ERMINIA MADAI HENRIQUEZ-SALAZAR, DIEGO SALAZAR-HENRIQUEZ, HAZEL SALAZAR-HENRIQUEZ,
Petitioners,
v. 24-1230 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
FOR PETITIONER: Rosemarie A. Barnett, Law Office of Rosemarie Barnett, PLLC, Freeport, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Erica B. Miles, Assistant Director; Vanessa M. Otero, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Diego Salazar-Asencio, Erminia Madai Henriquez-Salazar, and
two of their minor children, natives and citizens of El Salvador, seek review of a
decision of the BIA denying their motion to reopen their removal proceedings. See
In re Salazar-Asencio, Nos. A220 321 020/021/028/029 (B.I.A. Apr. 5, 2024).
Petitioners also move for a stay of removal pending adjudication of this petition.
We assume the parties’ familiarity with the underlying facts and procedural
2 history.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008), and we review a
petitioner’s constitutional claims and questions of law, including claims of
ineffective assistance of counsel, de novo, see Luna v. Holder, 637 F.3d 85, 102 (2d Cir.
2011).
A “motion to reopen shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). In this case, the motion to reopen
was based on an assertion of ineffective assistance of counsel. A movant raising
an ineffective assistance of counsel claim must first comply with specific
procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.
1988). See Jian Yun Zheng v. U.S. Dep’t of Just., 409 F. 3d 43, 45 (2d Cir. 2005) (“[A]n
alien who has failed to comply substantially with the Lozada requirements in her
motion to reopen before the BIA forfeits her ineffective assistance of counsel claim
in this Court.”). Then, “[t]o demonstrate ineffective assistance of counsel, [a
movant] must show that counsel’s performance fell below an objective standard
3 of reasonableness and that he was prejudiced as a result of such deficient
performance.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023) (internal quotation
marks omitted).
Salazar-Asencio alleged that his former counsel failed to (1) keep in contact
with him or explain the strength of his case, (2) prepare him for his merits hearing
or explain why he would not be testifying, (3) submit updated country conditions
that would show El Salvador is still dangerous, (4) apply to the Department of
Homeland Security for prosecutorial discretion despite stating he would and
despite having Salazar-Asencio provide all documents to support such a request,
(5) file a brief to the BIA even though he was retained to do so, and (6) file a motion
to reopen as he had promised after the BIA dismissed Salazar-Asencio’s petition
for failure to file a brief.
The BIA did not err in finding that Salazar-Asencio fulfilled the Lozado
requirements only as to his claim regarding the failure to file a brief. He was
required to submit proof that “former counsel [was] informed of the allegations
and allowed the opportunity to respond.” Lozada 19 I. & N. Dec. at 639. Here,
Salazar-Asencio provided an affidavit stating that he filed a complaint with a New
4 York attorney grievance committee, see Cert. Admin. R. at 52, and that complaint
listed all six of his allegations of ineffective assistance, see id. at 126–28. However,
Salazar-Asencio did not attest that he served that complaint on former counsel, or
that counsel had an opportunity to respond to the allegations. Cf. Avendano Bonilla
v. McHenry, No. 23-7487, 2025 WL 313863, at *2 (2d Cir. Jan. 28, 2025) (Petitioner
“did not comply with the Lozada requirements because, while he filed a grievance
in New York with the Third Department’s Attorney Grievance Committee, he did
not inform his former counsel of his allegations or give her the opportunity to
respond.”).
Furthermore, the email from Salazar-Asencio’s current counsel to his former
counsel purporting to summarize their conversation discussing the claim of
ineffective assistance mentions only that they discussed the failure to file a brief
with the BIA. Salazar-Asencio’s argument that the BIA should have allowed him
to file an affirmation that his current counsel discussed all claims of ineffectiveness
with his former counsel is unpersuasive as there is no such affirmation in the
record or evidence that one exists. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of
appeals shall decide the petition only on the administrative record on which the
5 order of removal is based.”). In sum, because there is no evidence that former
counsel knew of any allegations of ineffective assistance of counsel except his
failure to file a brief to the BIA, the BIA did not err in declining to consider the
other allegations. See Lozada 19 I. & N. Dec. at 639; see also Jian Yun Zheng, 409 F.3d
at 45.
We find no error in the BIA’s conclusion that Salazar-Asencio failed to
establish prejudice from former counsel’s failure to file a brief on appeal to the
BIA. In order to establish ineffective assistance on the part of his former attorney,
Salazar-Asencio had to “show that, but for counsel’s unprofessional errors, there
is a reasonable probability the [agency] would have granted the relief [he]
requested.” Paucar, 84 F.4th at 80 (internal quotation marks omitted). A
reasonable probability “is demonstrated where a movant makes a prima facie
showing that, but for counsel’s ineffectiveness, he would have been eligible for
relief, and could have made a strong showing in support of his application.” Id. at
80–81 (alteration accepted and internal quotation marks omitted). The BIA cited
this correct standard. See Cert. Admin. R. at 3–4.
Having applied the correct standard, the BIA did not err in concluding that
6 Salazar-Asencio failed to establish prejudice. Salazar-Asencio needed to show a
reasonable probability that his brief to the BIA could have shown error in the IJ’s
findings that (1) he failed to establish a nexus between a protected ground and the
gang members’ extortion demands and threats, and (2) the Salvadoran
government was not unable or unwilling to protect him and would not acquiesce
to his torture by gangs. But Salazar-Asencio’s motion identified no evidence or
arguments that could have been presented on appeal to the BIA. See 8 U.S.C.
§ 1229a(c)(7)(B) (providing that motions to reopen must “state new facts that will
be proven” if proceedings are reopened). His contention that he could not provide
such evidence “given the extremely tight time constraint” in filing the motion to
reopen within 90 days of the BIA’s summary dismissal of his appeal, Pet. Br. at 9,
is unpersuasive for the simple reason that Salazar-Asencio had the burden to
establish prejudice. The record reflects that he could have attempted to
supplement the motion between its filing in January 2024 and the BIA’s April 2024
decision, particularly since a motion to reopen alleging ineffective assistance of
counsel can be filed outside the 90-day deadline so long as the movant shows
deficient performance by counsel, prejudice, and due diligence in pursuing his
7 claim. See Rashid v. Mukasey, 533 F.3d 127, 130–31 (2d Cir. 2008) (describing the
requirements for equitably tolling the deadline to file a motion to reopen based on
ineffective assistance of counsel).
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED. Petitioners’ motion
for a stay of removal pending adjudication of this petition is DENIED as moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court