Opinion
No. 17-70040
03-18-2019
CARMELINA SUC-REYNOZO, ESTEFANY CARMELINA LUCAS-SUC, and MAYRA MELISSA LUCAS-SUC, Petitioners, v. WILLIAM P. BARR, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency Nos. A206-884-169 A206-884-170 A206-884-171 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Carmelina Suc-Reynozo, Estefany Carmelina Lucas-Suc, and Mayra Melissa Lucas-Suc, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals' ("BIA") order denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We grant in part, deny in part, and dismiss in part the petition for review.
Petitioners' motion to reopen alleged that prior counsel Amanda Bhuket provided ineffective assistance of counsel by failing to (1) timely file a petition for review with this court, and (2) move to remand to the immigration judge ("IJ") based on the alleged ineffective assistance of prior counsel Vicky Currie.
Because the BIA determined that Bhuket's failure to file a petition for review constituted clear ineffective assistance, the BIA abused its discretion in denying this aspect of petitioners' motion for failure to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002) ("[T]he record itself demonstrates the legitimacy of petitioners' ineffective assistance complaint—relieving them of the need technically to comply with Lozada—since it is undisputed that petitioners' counsel failed timely to file their applications."); Correa-Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir. 2013) (BIA abused its discretion in dismissing ineffective assistance claim on Lozada grounds where petitioner submitted a declaration from prior counsel admitting responsibility for failure to timely file application for relief). The BIA also failed to address whether Bhuket's failure to timely file a petition for review resulted in prejudice. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (BIA is not free to ignore arguments raised by a petitioner); Ray v. Gonzales, 439 F.3d 582, 587-88 (9th Cir. 2006) (where counsel's error deprives an alien of appellate proceedings, there is a rebuttable presumption of prejudice; presumption is not rebutted if the alien demonstrates plausible grounds for relief). Accordingly, we remand for the BIA to address in the first instance whether Bhuket's failure to file a petition for review resulted in prejudice, and if so, whether reopening or reissuance is warranted.
With respect to Bhuket's alleged failure to move to remand to the IJ based on the alleged ineffective assistance of Currie, the BIA did not abuse its discretion in denying this aspect of petitioners' motion for failure to comply with Matter of Lozada, where they failed to either show that a complaint against Currie was filed with the proper disciplinary authorities or explain why no such complaint was filed, and Currie's ineffective assistance is not plain on the face of the record. See Tamang v. Holder, 598 F.3d 1083, 1089-91 (9th Cir. 2010) (holding that failure to satisfy Matter of Lozada requirements was fatal to ineffective assistance of counsel claim where ineffectiveness was not plain on the face of the record).
We lack jurisdiction to consider petitioners' unexhausted contention that prior counsel Currie failed to argue that Suc-Reynozo's daughters were individually eligible for relief. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (this court lacks jurisdiction to review contentions not raised before the agency).
In light of our disposition, we do not reach petitioners' remaining contentions regarding prejudice or eligibility for asylum and related relief. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part; DISMISSED in part; REMANDED.