Douglas Hernandez-Ortez v. Eric Holder, Jr.
2014 U.S. App. LEXIS 1964
| 5th Cir. | 2014Background
- Hernandez-Ortez is a native of El Salvador who entered the U.S. unlawfully; multiple prior crimes 2002–2008; DHS initiated removal proceedings in 2011 by Notice to Appear; he conceded removability; 2012 hearing conducted via televideo with counsel and interpreter present; counsel stated Hernandez-Ortez wished to withdraw or seek voluntary departure rather than cancellation; IJ indicated a waiver of appeal; Hernandez-Ortez filed pro se appeal alleging ineffective assistance of counsel; BIA dismissed for lack of jurisdiction, finding Lozada compliance lacking and noting lack of notice to former counsel; Hernandez-Ortez argued Lozada compliance was sufficient with attached affidavit and LADB complaint; petition for review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hernandez-Ortez validly waived the right to appeal | Hernandez-Ortez argues Lozada compliance and actual service to counsel; Ninth Circuit precedent supports less rigid proof | BIA correctly found a valid waiver based on the record and Lozada requirements | Waiver valid; BIA correct to dismiss for lack of jurisdiction |
| Whether Lozada requirements were satisfied | Affidavit and disciplinary complaint attached; strict compliance unnecessary per some authority | Second Lozada requirement not met because counsel was not informed before allegations were presented to the BIA | Lozada requirements not satisfied; relief denied |
| Whether the BIA lacked jurisdiction to review the ineffective-assistance claim | Dispute over service to counsel should permit merits review | BIA acted within jurisdiction given Lozada deficiencies | BIA had jurisdiction to dismiss for lack of Lozada compliance |
| Whether new evidentiary materials could be considered on appeal | Affidavit and LADB materials should be considered; evidence not presented to BIA | Court cannot consider new evidence not presented to BIA | Evidence not considered; review limited to BIA record |
| Whether strict Lozada compliance is required | Lozada should not be rigidly enforced; other means can suffice | Lozada demands concrete procedural steps | Strict compliance required; not satisfied here |
Key Cases Cited
- Kohwarien v. Holder, 635 F.3d 174 (5th Cir. 2011) (waiver of appeal validity governs review of BIA jurisdiction)
- Girma v. I.N.S., 283 F.3d 664 (5th Cir. 2002) (legal standards for reviewing BIA decisions; substantial-evidence and de novo distinctions)
- Mai v. Gonzalez, 473 F.3d 162 (5th Cir. 2006) (legal standards for de novo review of BIA orders on questions of law)
- Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2001) (affidavit and procedural requirements in immigration reconsiderations)
- Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) (Lozada framework and procedural criteria for ineffective-assistance claims)
- Ray v. Gonzalez, 439 F.3d 582 (9th Cir. 2006) (Ninth Circuit view on Lozada requirements and notice to counsel)
- Rodriguez-Lariz v. I.N.S., 282 F.3d 1218 (9th Cir. 2002) (record can demonstrate efficacy of counsel; may excuse strict Lozada compliance in some contexts)
- Ontiveros-Lopez v. I.N.S., 213 F.3d 1121 (9th Cir. 2000) (BIA may not apply Lozada rigidly if other evidence shows ineffective assistance)