Lopez-Valenzuela v. Garland ( 2021 )


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  • Appellate Case: 21-9526    Document: 010110614670         Date Filed: 12/06/2021    Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                          December 6, 2021
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    ALEJANDRO LOPEZ-VALENZUELA,
    Petitioner,
    v.                                                           No. 21-9526
    (Petition for Review)
    MERRICK B. GARLAND,
    United States Attorney General,
    Respondent.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before TYMKOVICH, Chief Judge, MORITZ and ROSSMAN, Circuit Judges.
    _________________________________
    Mr. Alejandro Lopez-Valenzuela petitions for review of a final decision by the
    Board of Immigration Appeals (BIA). The BIA dismissed Mr. Lopez-Valenzuela’s
    appeal from an Immigration Judge’s (IJ) order denying an additional continuance and
    finding Mr. Lopez-Valenzuela had not established ineffective assistance of his prior
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    Appellate Case: 21-9526     Document: 010110614670        Date Filed: 12/06/2021     Page: 2
    counsel. Exercising jurisdiction under 
    8 U.S.C. § 1252
    (a)(5), we deny the petition for
    review.
    BACKGROUND
    Mr. Lopez-Valenzuela is a native and citizen of Mexico who entered the
    United States in 2000. Almost twelve years later, the government began removal
    proceedings on the ground that Mr. Lopez-Valenzuela had entered the country without
    authorization. An IJ granted Mr. Lopez-Valenzuela a year-long continuance to obtain
    legal representation and prepare his case.
    In January 2014, Mr. Lopez-Valenzuela appeared at a hearing with counsel and
    asked for more time to prepare. The IJ granted a nine-month continuance and directed
    the filing of pleadings. During that time, Mr. Lopez-Valenzuela filed an application for
    cancellation of removal based on hardship to his United States-citizen daughter, who
    suffers from asthma and lives in Georgia with her mother.
    Mr. Lopez-Valenzuela’s next hearing was scheduled for August 2017. He
    appeared at the hearing with counsel, who said he had “lost track of the pleadings” and
    was not prepared to proceed. R. at 89. The IJ continued the hearing for a month.
    In September 2017, Mr. Lopez-Valenzuela appeared before the IJ, conceded
    removability, and submitted proof that an I-130 form had been filed on his behalf.1 The
    IJ scheduled a final hearing on Mr. Lopez-Valenzuela’s cancellation of removal
    1
    An approved I-130 form can confirm that an alien is a relative of a United
    States citizen and is a step toward “apply[ing] for an immigrant visa or adjustment of
    status.” 
    Id. at 273
    .
    2
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    application for February 2019 and ordered that all documentary evidence be submitted
    thirty days before the hearing. Six months before that hearing, however, Mr. Lopez-
    Valenzuela’s counsel withdrew.
    Mr. Lopez-Valenzuela appeared at the February 2019 hearing with newly-retained
    counsel, who moved for a continuance because “he was just recently retained and [was]
    unprepared to handle the case,” 
    id. at 105
    , and needed time to “compile and submit”
    documentation supporting cancellation of removal, 
    id. at 288
    . New counsel explained in
    his written motion that he had some concerns about how Mr. Lopez-Valenzuela’s prior
    counsel had prepared the case. The IJ found no good cause for the requested
    continuance, given the length of time the removal proceedings had been pending, the
    multiple opportunities Mr. Lopez-Valenzuela had already been given to prepare his case,
    and the fact that new counsel was retained on the eve of the final hearing. Further, the IJ
    determined that Mr. Lopez-Valenzuela “did not provide evidence to meet the standards
    under Matter of Lozada to make an ineffective assistance of counsel claim.” 
    Id.
     at 55
    (citing Matter of Lozada, 
    19 I. & N. Dec. 637
    , 639 (BIA 1988) (articulating the
    requirements for an ineffective assistance of counsel claim in immigration proceedings)).
    The IJ then took testimony from Mr. Lopez-Valenzuela in support of his
    application for cancellation of removal. Mr. Lopez-Valenzuela testified about his
    daughter’s health, stating that she uses an inhaler, but he did not know how often she
    used it or how serious her asthma is. He further testified that she would remain in the
    United States with her mother if he were removed to Mexico.
    3
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    The IJ denied cancellation of removal, concluding that Mr. Lopez-Valenzuela
    failed to show his removal would create a hardship for his daughter.2 The IJ granted
    Mr. Lopez-Valenzuela’s request, unopposed by the government, for voluntary departure.
    Mr. Lopez-Valenzuela then appealed to the BIA, challenging the denial of the
    requested continuance and seeking a remand to the IJ for a new hearing due to the
    ineffective assistance of his prior counsel.
    The BIA dismissed the appeal and denied remand. The BIA first determined that
    Mr. Lopez-Valenzuela had not shown good cause for a continuance, as he had not
    explained his delay in retaining new counsel sufficiently in advance of the hearing or
    demonstrated prejudice from the denial of the continuance. Next, the BIA determined
    that Mr. Lopez-Valenzuela had not complied with any of the procedural requirements for
    bringing an ineffective assistance of counsel claim nor identified evidence in support of
    that claim. Finally, the BIA ruled that he had waived any challenge to the IJ’s denial of
    cancellation of removal.
    DISCUSSION
    I. Standards of Review
    Where, as here, a single BIA member issues a brief order deciding the merits of an
    appeal, we review the BIA’s order and consult the IJ’s decision when necessary to
    understand the grounds for the BIA’s decision. See Uanreroro v. Gonzales, 
    443 F.3d 2
    “The Attorney General may cancel removal of . . . an alien who is
    inadmissible or deportable from the United States if the alien,” among other things,
    “establishes that removal would result in exceptional and extremely unusual hardship
    to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien
    lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).
    4
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    1197, 1204 (10th Cir. 2006). When reviewing the denial of a continuance, we apply an
    abuse-of-discretion standard and grant relief “[o]nly if the decision was made without a
    rational explanation, inexplicably departed from established policies, or rested on an
    impermissible basis.” Jimenez-Guzman v. Holder, 
    642 F.3d 1294
    , 1297 (10th Cir. 2011)
    (brackets and internal quotation marks omitted). Otherwise, “[w]e review the BIA’s legal
    determinations de novo, and its findings of fact under a substantial-evidence standard.”
    Kabba v. Mukasey, 
    530 F.3d 1239
    , 1244 (10th Cir. 2008) (internal quotation marks
    omitted).
    II. Continuance
    An IJ “may grant a motion for continuance for good cause shown.” 
    8 C.F.R. § 1003.29
    . As the party seeking a continuance, Mr. Lopez-Valenzuela bore the burden of
    showing good cause. See Matter of L-A-B-R-, 
    27 I. & N. Dec. 405
    , 413 (A.G. 2018).
    When “a motion for continuance [is] based upon an asserted lack of preparation
    and a request for opportunity to obtain and present additional evidence,” the “alien at
    least must make a reasonable showing that the lack of preparation occurred despite a
    diligent good faith effort to be ready to proceed and that any additional evidence he seeks
    to present is probative, noncumulative, and significantly favorable to the alien.” Matter
    of Sibrun, 
    18 I. & N. Dec. 354
    , 356 (BIA 1983).
    Mr. Lopez-Valenzuela contends he “diligently . . . obtain[ed] new counsel” and
    “ha[d] new counsel review the limited information prior to the hearing.” Pet’r’s Br.
    at 27. But he does not address why he delayed retaining new counsel until right before
    the hearing, given that prior counsel had withdrawn from the case six months earlier.
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    Nor does he identify any specific evidence he would have submitted if he had been
    granted a continuance.
    As the BIA correctly observed, Mr. Lopez-Valenzuela’s case had been continued
    numerous times at his request—once so he could obtain counsel and prepare for a merits
    hearing and twice so newly-retained counsel could prepare for the hearing. Under these
    circumstances, and where Mr. Lopez-Valenzuela failed to meet Sibrun’s requirements,
    the BIA did not err in rejecting Mr. Lopez-Valenzuela’s challenge to the IJ’s denial of a
    fourth continuance.
    Further, “even where an alien has made this minimum required showing,” he must
    also “establish[ ] that that denial [of a continuance] caused him actual prejudice and harm
    and materially affected the outcome of his case.” Sibrun, 18 I. & N. Dec. at 356-57.
    Mr. Lopez-Valenzuela contends that “prejudice can be assumed” because he testified
    before the IJ that his removal would pose a hardship to his daughter. Pet’r’s Br. at 26.
    But there are at least two flaws in this argument. First, Mr. Lopez-Valenzuela identifies
    no authority, and we have found none, indicating that an assumption of prejudice is
    consistent with the “actual prejudice” required in Sibrun. See Matter of Hashmi, 
    24 I. & N. Dec. 785
    , 788 (BIA 2009) (stating that “Matter of Sibrun . . . set a high standard for
    adjudicating motions to continue” and that “these motions must be accompanied, at a
    minimum, by a reasonable showing” of “significantly favorable” evidence (internal
    quotation marks omitted)). Second, in the BIA, Mr. Lopez-Valenzuela waived any
    challenge to the IJ’s denial of his application for cancellation of removal. Thus, to the
    extent Mr. Lopez-Valenzuela’s argument in this court depends on a review of the IJ’s
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    adverse hardship ruling, we lack jurisdiction to consider the issue. See Garcia-Carbajal
    v. Holder, 
    625 F.3d 1233
    , 1237 (10th Cir. 2010) (observing that an alien must exhaust an
    argument in “the BIA before he or she may advance it in court”).
    We see no abuse of discretion in the denial of Mr. Lopez-Valenzuela’s motion for
    a continuance.
    III. Ineffective Assistance of Counsel
    Under Matter of Lozada, a motion based on a claim of ineffective
    assistance of counsel must be supported by (1) the aggrieved party’s
    affidavit setting forth the agreement that was entered into with former
    counsel and what counsel did or did not represent to the respondent in this
    regard; (2) evidence that former counsel was informed of the allegations
    and allowed the opportunity to respond; and (3) evidence the aggrieved
    party filed a complaint with appropriate disciplinary authorities, and if not,
    why not.
    Mickeviciute v. INS, 
    327 F.3d 1159
    , 1161 n.2 (10th Cir. 2003) (citing Matter of Lozada,
    
    19 I. & N. Dec. 637
    , 639 (BIA 1988), aff’d, 
    857 F.2d 10
     (1st Cir. 1988)).
    Mr. Lopez-Valenzuela argues “it was an error to require [him] to comply with the
    requirements of Matter of Lozada while his case was pending.” Pet’r’s Br. at 29. He
    seems to contend that the procedural requirements for an ineffective assistance of counsel
    claim, articulated in Lozada, only apply in the context of a motion to reopen. Mr. Lopez-
    Valenzuela provides no authority to support this argument, and we have found none.
    Indeed, at least two other circuits have rejected similar arguments. See Garcia-Martinez
    v. Dep’t of Homeland Sec., 
    448 F.3d 511
    , 514 (2d Cir. 2006) (declining to apply Lozada
    “less strictly when the BIA evaluates an ineffective assistance of counsel claim on the
    direct appeal of an IJ’s decision, rather than on a motion to reopen filed before the IJ or
    7
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    the BIA”); Hamid v. Ashcroft, 
    336 F.3d 465
    , 469 (6th Cir. 2003) (finding no error where
    the BIA declined to waive “technical[ ] compl[iance]” with Lozada on a direct appeal of
    an IJ’s removal order). Further, this court has held that failure to comply with all three of
    the Lozada procedural requirements, as occurred here, is fatal to an ineffective-assistance
    claim. See Tang v. Ashcroft, 
    354 F.3d 1192
    , 1196-97 (10th Cir. 2003) (declining to
    “decide whether substantial compliance [with Lozada] would be sufficient because [the
    petitioner] . . . made no attempt to comply with any of Lozada’s requirements”).
    We discern no error in the BIA’s rulings regarding Mr. Lopez-Valenzuela’s
    ineffective-assistance claim.
    CONCLUSION
    We deny the petition for review.
    Entered for the Court
    Veronica S. Rossman
    Circuit Judge
    8