Sosa Morales v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 31, 2025
• Docket: 24-3549
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 31 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS SALVADOR SOSA MORALES, No. 24-3549 Agency No. Petitioner, A075-738-097 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted October 20, 2025 Phoenix, Arizona

Before: TALLMAN, BADE, and LEE, Circuit Judges.

Luis Salvador Sosa Morales, a native and citizen of Mexico, seeks review of

the Board of Immigration Appeals’ (BIA) summary dismissal of his appeal from

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

We review for abuse of discretion the BIA’s summary dismissal of an appeal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and decision not to permit equitable tolling. Magana-Magana v. Bondi, 129 F.4th

557, 574 (9th Cir. 2025); Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005).

We review de novo the question whether the BIA’s summary dismissal of an

appeal violated a petitioner’s due process rights. Nolasco-Amaya v. Garland, 14

F.4th 1007, 1012 (9th Cir. 2021).

1. Sosa Morales argues that the BIA abused its discretion in finding that

he did not substantially comply with the procedural requirements in Matter of

Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), or otherwise show ineffective assistance

of counsel that was plain on the record. We see no reversible error. Even assuming

the BIA abused its discretion in finding no deficient conduct on the part of prior

counsel, Sosa Morales has not shown that he was “substantial[ly] prejudice[d]” by

such conduct, as is required for an ineffective assistance of counsel claim. See

Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th Cir. 2022). Under our

precedent, an alien establishes a presumption of prejudice when he “is prevented

from filing an appeal in an immigration proceeding due to counsel’s error,” because

“the error deprives the alien of the appellate proceeding entirely.” Ray v. Gonzales,

439 F.3d 582, 587 (9th Cir. 2006) (citation modified). In contrast, the BIA in its

decision here expressly invited Sosa Morales to file a motion to reconsider with the

proper proof required under Lozada. Because the BIA directly invited Sosa Morales

to return with the necessary documentation to support his ineffective assistance of

2 24-3549 counsel claim, we hold that he was not deprived of the appellate proceeding entirely,

and thus no prejudice is presumed from prior counsel’s alleged deficient conduct.

And on the record before us, we cannot say that Sosa Morales was actually harmed

due to prior counsel’s failure to timely file the notice of appeal. Accordingly, the

BIA did not err in dismissing the petition on Sosa Morales’s ineffective assistance

of counsel claim.1

2. Nor did the BIA violate Sosa Morales’s due process rights by failing to

consider DHS’s lack of objection to his untimely notice of appeal. The lack of

objection does not excuse Sosa Morales’s burden to show that equitable tolling is

warranted in his case. See Matter of Morales-Morales, 28 I. & N. Dec. 714, 717

(B.I.A. 2023).

3. Nor did the BIA err as a matter of law or violate Sosa Morales’s due

process rights by declining to exercise its certification authority. Sosa Morales

argues that the BIA “should have considered ineffective assistance of counsel when

considering its certification authority.” But we generally lack jurisdiction to review

a BIA decision not to certify a claim, which is discretionary by nature, unless “there

1 Sosa Morales also argues that timely service of the notice of appeal to the Department of Homeland Security (DHS) constitutes an extraordinary circumstance warranting equitable tolling. However, the question is not whether an extraordinary circumstance excuses the untimely filing, but whether an extraordinary circumstance prevented timely filing. See Smith v. Davis, 953 F.3d 582, 595 (9th Cir. 2020).

3 24-3549 is ‘law to apply’ in doing so.” Idrees v. Barr, 923 F.3d 539, 543 n.3 (9th Cir. 2019)

(citation omitted). Because Sosa Morales challenges the BIA’s exercise of

discretion, there is no law to apply, and we dismiss this part of the petition for lack

of jurisdiction.

Sosa Morales offers mere conclusory assertions that he has an interest in a

reasoned explanation from the BIA regarding its decision not to certify the appeal.

But he does not otherwise support his argument or cite authority for the proposition

that the BIA violated his procedural due process rights. We find the argument is

therefore waived, and we decline to address it. See Castro-Perez v. Gonzales, 409

F.3d 1069, 1072 (9th Cir. 2005).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.

4 24-3549