Felix D. Guzman-Rivadeneira v. Loretta E. Lynch , 822 F.3d 978 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3734
FELIX D. GUZMAN-RIVADENEIRA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A044 666 731
____________________
ARGUED APRIL 26, 2016 — DECIDED MAY 13, 2016
____________________
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Felix Guzman-Rivad-
eneira, a citizen of Ecuador, seeks review of a Board of Immi-
gration Appeals decision upholding an order of removal. He
asks us to address an underlying question of law, whether his
1993 conviction in California for possessing counterfeit pre-
scription blanks was properly deemed a “crime involving
2 No. 14-3734
moral turpitude” for purposes of immigration law. We con-
clude, however, that too many layers of procedural defaults
prevent us from reaching that question of law.
First, Guzman-Rivadeneira’s original lawyer conceded be-
fore the immigration judge that the 1993 conviction was for a
crime involving moral turpitude. The immigration judge was
entitled to accept that concession and to focus her attention
on Guzman-Rivadeneira’s other arguments. Second, in ap-
pealing to the Board of Immigration Appeals, Guzman-
Rivadeneira’s new lawyer did not ask the Board for the relief
he seeks in court: to relieve him of the first lawyer’s conces-
sion. Also, although the new lawyer criticized the first law-
yer’s performance, she did not take the procedural steps
needed to obtain relief based on a claim of ineffective assis-
tance of counsel.
In support of this petition for judicial review, Guzman-
Rivadeneira’s third set of lawyers have made a valiant effort
to argue that he should be relieved of his original lawyer’s
concession. We conclude, however, that the Board did not le-
gally err or abuse its discretion by deciding the case as it was
presented to it. We therefore deny the petition for review.
I. Factual and Procedural Background
After Guzman-Rivadeneira came to the United States
from Ecuador, three events occurred that affect whether he
may remain here. First, in 1993 he was convicted in California
of possession of counterfeit prescription blanks. See Cal.
Health & Safety Code § 11162.5(a) (West 1993). Second, after
he had returned to Ecuador, he then returned to the United
States in 1995. He applied for and received the status of lawful
permanent resident because his mother is a U.S. citizen. On
No. 14-3734 3
his application, he was asked whether he had ever been ar-
rested or convicted of a crime. He falsely answered “no.” Fi-
nally, in 2012, Guzman-Rivadeneira pled guilty in California
to the misdemeanor of obtaining a controlled substance by
fraud. See Cal. Health & Safety Code § 11173(a) (West 2012).
Guzman-Rivadeneira came to the attention of immigra-
tion authorities in 2014 when he returned to the United States
from another trip abroad. The Department of Homeland Se-
curity charged that he was removable on four grounds: con-
viction of a crime involving moral turpitude for the 1993
counterfeit prescription blanks conviction, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); conviction of a controlled substance of-
fense for the 2012 conviction, id. § 1182(a)(2)(A)(i)(II); pro-
curement of a visa by fraud, id. § 1182(a)(6)(C)(i); and lack of
a valid entry document when he was reentering the United
States, id. § 1182(a)(7)(A)(i)(I).
At his removal hearing, Guzman-Rivadeneira’s lawyer
conceded all four grounds of removability. The lawyer offered
other arguments for avoiding the consequences, including
that a 1997 California state court order reducing the 1993 con-
viction to a misdemeanor should be given retroactive effect
for immigration purposes. He also argued that Guzman-
Rivadeneira was eligible for a discretionary waiver of remov-
ability for his visa-application fraud available to those who,
among other things, were “otherwise admissible.”
See 8 U.S.C. § 1227(a)(1)(H)(i). The lawyer further argued
that, with that waiver, Guzman-Rivadeneira would remain a
legal permanent resident and thus would be eligible for can-
cellation of other grounds of removal. See id. § 1229b(a).
4 No. 14-3734
The immigration judge denied relief. Citing the lawyer’s
concessions, the judge first found Guzman-Rivadeneira re-
movable on all four grounds. The judge then explained that
Guzman-Rivadeneira was not eligible for a waiver. His 1993
conviction for a crime that, as his lawyer conceded, involved
moral turpitude meant that he was not “otherwise admissi-
ble” when he reentered in 1995. Without a waiver, the judge
concluded, Guzman-Rivadeneira was not and never had been
a lawful permanent resident and was therefore ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a).
With a new lawyer, Guzman-Rivadeneira appealed to the
Board of Immigration Appeals. He argued that the immigra-
tion judge made a legal error by finding that his 1993 convic-
tion was a crime involving moral turpitude and that he was
ineligible for the waiver of his fraud and cancellation of re-
moval. His new lawyer barely mentioned the first lawyer’s
concession that the 1993 conviction was for a crime involving
moral turpitude and did not directly seek relief from that con-
cession. Guzman-Rivadeneira’s brief to the Board did not
even mention Matter of Velasquez, 19 I & N Dec. 377 (1986), the
case he relies upon here to seek relief from his lawyer’s con-
cession, or its holding that the Board may relieve an alien
from his lawyer’s concessions in “egregious circumstances.”
The new lawyer’s brief to the Board criticized the first law-
yer’s performance as “inadequate” because he had failed to
understand both how criminal convictions should be evalu-
ated and the relationships among the different grounds for
removal and related issues of potential waiver of those
grounds. Guzman-Rivadeneira’s brief to the Board made no
No. 14-3734 5
effort to comply with the procedural requirements estab-
lished by the Board in Matter of Lozada, 19 I & N Dec. 637
(1988), for relief from ineffective assistance of counsel.
Instead, Guzman-Rivadeneira’s appeal to the Board tried
to approach the moral turpitude issue as if it were a pure
question of law, disconnected from the procedural history in
which the issue had been conceded. He argued that under the
categorical approach that is used to decide the legal effects of
prior criminal convictions for many purposes, the counterfeit
prescription blank offense should not be deemed a crime in-
volving moral turpitude because the crime did not require
proof or admission of any element of intent to defraud or mis-
lead. See Matter of Serna, 20 I & N. Dec. 579 (1992) (conviction
for possession of altered immigration document without ac-
tual use or intent to use it unlawfully was not for crime in-
volving moral turpitude); see generally Matter of Silva-Trevino,
26 I. & N. Dec. 550, 552–53 (Att’y Gen. 2015) (describing and
applying categorical approach to crimes involving moral tur-
pitude).
The Board did not reach the substance of this argument.
Instead it relied on the general rule that aliens are bound by
the representations of their lawyers. That rule has a narrow
exception for “egregious circumstances” recognized in Matter
of Velasquez, 19 I. & N. Dec. at 382–83. Although Guzman-
Rivadeneira had not asked the Board to consider that excep-
tion, the Board mentioned it anyway. In making its decision,
the Board recognized that Guzman-Rivadeneira had called
his former lawyer’s performance “inadequate,” so the Board
considered the case as it had been presented, in terms of inef-
fective assistance of counsel.
6 No. 14-3734
Framed in those terms, a threshold question was whether
Guzman-Rivadeneira had satisfied the procedural require-
ments for claiming ineffective assistance of counsel under
Matter of Lozada, 19 I. & N. Dec. at 639.
In Lozada, the Board responded to a high volume of claims
of ineffective assistance by counsel by establishing new pro-
cedural requirements before such claims would be considered
on their merits. An alien seeking relief from an administrative
decision based on his lawyer’s allegedly ineffective profes-
sional performance would be expected: (a) to provide an affi-
davit with the relevant facts, including the details of the rep-
resentation agreement; (b) to show that the former lawyer had
been informed of the allegations and had an opportunity to
respond; and (c) in cases alleging a violation of ethical or legal
responsibilities, to state whether an appropriate disciplinary
complaint had been filed and if not, why not.
The Board pointed out that Guzman-Rivadeneira had not
tried to comply with those procedural requirements. The
Board then affirmed the immigration judge’s rulings regard-
ing removability and ineligibility for relief from removal.
II. Analysis on Judicial Review
Aided now by a third set of lawyers, Guzman-Rivadeneira
petitions for review and now invokes Velasquez, 19 I. & N.
Dec. at 382–83, to argue (a) that he is eligible for the exception
to the general rule that binds aliens to their lawyer’s conces-
sions, and (b) that he is entitled to such relief without having
complied with the Lozada procedural requirements for claims
for ineffective assistance of counsel.
No. 14-3734 7
A. Jurisdiction for Judicial Review
We pause to explain our jurisdiction over this petition for
review. Appellate courts generally lack jurisdiction to review
removal orders against persons who “are removable by rea-
son of having committed a criminal offense covered in section
1182(a)(2),” the statute at issue in this case, which provides
that aliens who have been convicted of a crime involving
moral turpitude are ineligible for admission to the United
States. See 8 U.S.C. § 1252(a)(2)(C); Moral-Salazar v. Holder,
708 F.3d 957, 961–62 (7th Cir. 2013). This bar does not apply to
issues of law, see 8 U.S.C. § 1252(a)(2)(D); Moral-Salazar,
708 F.3d at 962, and the underlying issue of law here is
whether Guzman-Rivadeneira has been convicted of such a
crime. The merits and our jurisdiction are intertwined, and we
have jurisdiction to consider this petition for review.
B. Lawyers’ Concessions and the Velasquez Exception
In Velasquez the Board of Immigration Appeals held that
an alien’s lawyer’s admissions in immigration proceedings
are binding absent “egregious circumstances.” The Velasquez
exception may apply to a concession that (1) was “the result
of unreasonable professional judgment,” (2) was so unfair
that it produced an unjust result, or (3) was untrue or incor-
rect. Velasquez, 19 I. & N. Dec. at 382–83; see also Santiago-Ro-
driguez v. Holder, 657 F.3d 820, 831–32 (9th Cir. 2011) (same);
cf. Hanna v. Holder, 740 F.3d 379, 387–88 (6th Cir. 2014) (“as a
threshold matter” the alien must argue “that the factual ad-
missions or concessions of removability are untrue or incor-
rect,” and that they came from unreasonable professional
judgment or produced an unjust result).
8 No. 14-3734
Guzman-Rivadeneira argues that the exception for egre-
gious circumstances should apply here. He asserts his original
lawyer’s concession that the prescription-blanks conviction in
1993 was a crime of moral turpitude was a product of unrea-
sonable professional judgment, produced an unjust result by
precluding all possibility of relief from removal, and was le-
gally incorrect.
As our account of the procedural history shows, Guzman-
Rivadeneira did not present this argument to the Board. He
mentioned to the Board that former counsel’s performance
was “inadequate,” but he did not cite Velasquez or argue that
he should be relieved of counsel’s concessions because of
“egregious circumstances,” much less outline what those
egregious circumstances might have been. He tried instead to
persuade the Board to treat the issue as a pure issue of law,
regardless of the earlier procedural failures.
A petitioner’s failure to exhaust an argument in adminis-
trative proceedings generally bars him from raising it before
a court of appeals. See Duarte-Salagosa v. Holder, 775 F.3d 841,
846 (7th Cir. 2014) (petitioner must have asked Board to con-
sider “same arguments” presented to court, not another argu-
ment based on the same evidence); El-Gazawy v. Holder,
690 F.3d 852, 858–59 (7th Cir. 2012) (argument must be pre-
sented to Board with enough specificity to allow Board to ap-
ply its specialized knowledge and provide reasoning for court
to review).
In limited circumstances we have discretion to excuse a
failure to exhaust, see Duarte-Salagosa, 775 F.3d at 846; Arobeli-
dze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011), but Guzman-
Rivadeneira has not convinced us to exercise that discretion
here. He argues that because the Board itself cited Velasquez,
No. 14-3734 9
even though he did not, we should consider the arguments
that he now advances about it.
We disagree. First, it is clear that the Velasquez exception
for egregious circumstances is a procedural doctrine that the
Board has developed for exercise of the Board’s own discre-
tion. We see no abuse of discretion or legal error, particularly
since Guzman-Rivadeneira is attacking the Board for not ap-
plying the Velasquez doctrine sua sponte. We have rejected “the
idea that the judiciary can review the Board’s decision not to
act sua sponte.” Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.
2013). The Board only cited the case; it did not analyze its
three factors against the evidence in the record, let alone ex-
plain why that evidence did not meet the standard of egre-
gious circumstances. To review the merits, we would have to
speculate about the grounds on which the Board might have
denied an argument about egregious circumstances if Guz-
man-Rivadeneira had made that argument.
In addition, Guzman-Rivadeneira has not even suggested
that his second lawyer represented him incompetently before
the Board. That lawyer’s decision to refrain from invoking Ve-
lasquez may well have been strategic, albeit not successful. We
see no reason to fault the Board for having decided the case
as presented to it. The immigration judge relied explicitly on
the original lawyer’s concession, and the new lawyer on ap-
peal did not ask for relief from that concession under Ve-
lasquez. We therefore decline to exempt Guzman-Rivadeneira
from the administrative exhaustion requirement.
Guzman-Rivadeneira’s argument raises one aspect of Ve-
lasquez that the Board may wish to clarify in the future. The
Velasquez inquiry into arguably egregious circumstances is a
close relative of the Lozada inquiry into a claim of ineffective
10 No. 14-3734
assistance of counsel. The Board may wish to consider more
formally whether and when the Lozada procedural require-
ments also apply to arguments under Velasquez.
C. Ineffective Assistance Theory
Guzman-Rivadeneira raises one final argument. Apart
from Velasquez, he argues that his case should be reopened be-
cause he received ineffective assistance of counsel before the
immigration judge. As Guzman-Rivadeneira acknowledges,
though, he failed to comply with Lozada’s procedural require-
ments for bringing such a claim. He urges us to follow the
Ninth Circuit, which has held that the Lozada requirements
need not be applied where ineffective assistance of counsel is
“clear and obvious from the record.” See, e.g., United States v.
Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 2014), quoting Her-
nandez-Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir. 2007),
quoting in turn Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th
Cir. 2002).
We have repeatedly declined invitations to follow that ap-
proach. See Marinov v. Holder, 687 F.3d 365, 368–70 (7th Cir.
2012); Lin Xing Jiang v. Holder, 639 F.3d 751, 755 (7th Cir.2011);
Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008); Stroe v.
I.N.S., 256 F.3d 498, 501 (7th Cir. 2001). Satisfying Lozada’s
procedural requirements, we have explained, is necessary to
screen the many ineffective assistance claims that the Board
sees, to discourage baseless allegations, to police the quality
of the immigration bar, and to ensure that attorneys are able
to defend attacks against their integrity and competence. Patel
v. Gonzales, 496 F.3d 829, 831–32 (7th Cir.2007); Stroe, 256 F.3d
at 504.
Accordingly, we DENY the petition for review.