Carlos Gonzalez-Benitez sought review of two Board of Immigration Appeals decisions. First, the BIA denied his request to reopen removal proceedings, arguing he received ineffective assistance of counsel and that he should be eligible for special rule cancellation of removal as a battered spouse. Second, the BIA denied his subsequent motion to reconsider that 2017 order. The petitioner claimed his former attorney made strategic errors regarding his wife's mental health and failed to properly pursue his cancellation of removal claim. The case reached the Ninth Circuit as a consolidated appeal challenging the BIA's refusal to reopen the proceedings and its denial of the motion to reconsider.
The panel unanimously denied the petition, addressing three specific grounds for the BIA's decision. First, the court affirmed that the BIA did not abuse its discretion in finding the petitioner failed to comply with the procedural requirements of Matter of Lozada. Under Lozada, a petitioner alleging ineffective assistance must provide an affidavit detailing the agreement with counsel, inform the counsel of the allegations, and afford them an opportunity to respond. The court noted that the petitioner filed a complaint with the State Bar on March 20, 2017, but did not file his motion to reopen until March 23, 2017. The BIA reasonably determined that three days was insufficient time for the former counsel to respond and explain their strategic choices. Second, the court upheld the BIA's decision not to excuse this non-compliance. While Lozada requirements can be excused if the facts are plain on the face of the record, the BIA found that the prior counsel's decision to base a hardship claim on the petitioner's wife's mental health was a reasonable strategic choice, meaning the record did not plainly show ineffective assistance. Third, the court affirmed the BIA's finding that the petitioner failed to establish a prima facie case for special rule cancellation of removal. To qualify, a petitioner must show they were battered or subjected to extreme cruelty and that removal would result in extreme hardship beyond that typically associated with deportation. The BIA found the petitioner failed to demonstrate such extreme hardship, and the court agreed that the new evidence submitted regarding separation from his wife and financial impacts did not exceed the hardship typically associated with deportation.
The petition for review is denied, meaning the Board of Immigration Appeals' order denying the motion to reopen remains in effect. The petitioner's removal order stands, and the temporary stay of removal entered under General Order 6.4(c) is lifted immediately. The decision reinforces the strict procedural timeline required for Lozada claims, emphasizing that petitioners must provide counsel adequate time to respond before filing motions to reopen.
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