Carlos Gonzalez-Benitez sought review of two decisions by the Board of Immigration Appeals (BIA). First, the BIA denied his request to reopen and remand removal proceedings, arguing he received ineffective assistance of counsel and should be eligible for special rule cancellation of removal under 8 U.S.C. § 1229b(b)(2). Second, the BIA denied his subsequent motion to reconsider that 2017 order. Gonzalez-Benitez alleged that his former counsel made a strategic error by basing a hardship claim on his wife's mental health struggles, and he sought to reopen the case to pursue relief based on extreme hardship to himself and his family if deported.
The panel addressed three distinct grounds for the BIA's denial. First, regarding the ineffective assistance of counsel claim, the court applied the procedural requirements of Matter of Lozada, which mandate that a petitioner must provide an affidavit describing the agreement with counsel, inform counsel of the allegations, and afford counsel an opportunity to respond. The court found the BIA did not abuse its discretion because the petitioner filed his motion to reopen only three days after delivering a complaint to his former counsel. The court reasoned that three days was insufficient time for counsel to respond and explain their strategic choices. Second, the court addressed whether the BIA should excuse non-compliance with Lozada. The court affirmed that the requirements were not dispositive only when facts are plain on the face of the record, but here, the BIA reasonably concluded that the prior counsel's strategic decision was not obviously erroneous. Third, the court reviewed the denial of special rule cancellation of removal. Under 8 U.S.C. § 1229b(b)(2), a petitioner must show they were battered or subjected to extreme cruelty and that removal would result in extreme hardship to the alien, their child, or their parent. The court held the BIA reasonably concluded the petitioner failed to show extreme hardship, noting that potential separation from a spouse and financial impacts are not beyond what is typically associated with deportation.
The petition for review is denied, and the original order of removal remains in effect. The temporary stay of removal entered pursuant to General Order 6.4(c) is lifted immediately. The decision reinforces the strict procedural adherence required for ineffective assistance claims in immigration proceedings and clarifies that standard hardships associated with deportation do not meet the statutory threshold for special rule cancellation.
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