Torres Lopez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2025
• Docket: 23-759
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 20 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAIRO SURIEL TORRES LOPEZ, No. 23-759 Agency No. Petitioner, A205-414-453 v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted May 16, 2025** Phoenix, Arizona

Before: RAWLINSON, BUMATAY, and SANCHEZ, Circuit Judges.

Petitioner Jairo Suriel Torres Lopez, a native and citizen of

Mexico, petitions for review of a decision by the Board of Immigration Appeals

(“BIA”) denying his motion to reopen/remand based on ineffective assistance of

counsel. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

* 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). We review the BIA’s denial of a motion to reopen for abuse of discretion

and will reverse the denial only if it is “arbitrary, irrational, or contrary to law.”

Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022) (internal quotations

and citations omitted). “Claims of due process violations in deportation

proceedings, due inter alia to ineffective assistance of counsel, are reviewed de

novo.” Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). “We review findings

of fact regarding counsel’s performance for substantial evidence.” Id. at 1024.

Torres Lopez asserts that his former counsel, Alex Navidad, rendered

ineffective assistance by (1) not discovering his eligibility for adjustment of status

under 8 U.S.C. § 1255(a), and (2) recommending that he withdraw his cancellation

of removal application despite his eligibility and with no tactical advantage to

foregoing such relief.1 To establish ineffective assistance of counsel, Torres Lopez

must show (1) that “the proceeding was so fundamentally unfair that [he] was

prevented from reasonably presenting his case,” and (2) resulting “prejudice.” Lin,

377 F.3d at 1023‒24 (citations omitted). The BIA did not abuse its discretion in

denying Torres Lopez’s motion to reopen.

The record does not support Torres Lopez’s claim that his counsel was

1 Before the BIA, Torres Lopez also asserted that his former counsel rendered ineffective assistance by failing to apply for deferred action of removal. Torres Lopez does not raise this claim before this court, and therefore this argument is waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

2 23-759 ineffective for failing to discover that immigration officials “waved” Torres Lopez

into the United States as a child. When a petitioner fails to inform counsel of facts

that may give rise to another basis for relief, any resulting prejudice is “directly

attributable” to the petitioner’s failure, “rather than the quality of [counsel’s]

representation.” Azanor v. Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004).

Moreover, Torres Lopez’s only support for his assertion that he was

“waved” into the U.S. is his own affidavit from 2021. Other evidence in the record

undercuts this contention. Torres Lopez’s I-213 forms reflect that he repeatedly

told immigration officials that he had entered without inspection at an unidentified

location. In his removal proceedings, Torres Lopez also admitted that he had not

been inspected when he entered the United States. Given this conflicting evidence,

the BIA did not err in determining that Torres Lopez’s affidavit was not inherently

believable such that it may be accepted without further corroboration. See Bhasin

v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (establishing that “affidavits

supporting a motion to reopen must be accepted as true unless inherently

unbelievable”).

Substantial evidence also supports the BIA’s determination that Navidad’s

decision not to pursue cancellation of removal was likely a reasonable strategic

decision, not deficient performance. “Counsel . . . is not required to have a tactical

reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for

3 23-759 success—for recommending that a weak claim be dropped altogether.” Knowles v.

Mirzayance, 556 U.S. 111, 127 (2009). Cancellation of removal is a discretionary

form of relief. See 8 U.S.C. § 1229b(b)(1). According to Navidad, Torres Lopez

was “well aware that his [c]ancellation application was weak due to insufficient

hardship evidence and that he would likely be denied.” The BIA also observed

that Torres Lopez’s prior DUI convictions, though later set aside, further

diminished the likelihood of success.

Navidad’s decision to withdraw Torres Lopez’s request for cancellation of

removal also enabled Torres Lopez to pursue pre-conclusion voluntary departure

under 8 U.S.C. § 1229c(a)(1). The agency has greater discretion in awarding pre-

conclusion voluntary departure than post-conclusion voluntary departure under 8

U.S.C. § 1229c(b). See Matter of Arguelles-Campos, 22 I. & N. Dec. 811, 817

(BIA 1999). And this distinction is particularly relevant where an individual’s

criminal record weighs against discretionary relief. See id. By withdrawing the

cancellation of removal claim, Navidad may have enhanced Torres Lopez’s

likelihood of success for pre-conclusion voluntary departure, which the IJ

ultimately granted.

Under these circumstances, the BIA did not err in finding no ineffective

assistance of counsel and did not abuse its discretion in denying Torres Lopez’s

motion to reopen.

4 23-759 PETITION DENIED.

5 23-759