Felix D. Guzman-Rivadeneira v. Loretta E. Lynch
822 F.3d 978
7th Cir.2016Background
- Petitioner Felix Guzman-Rivadeneira, an Ecuadorian national, has a 1993 California conviction for possession of counterfeit prescription blanks and a 2012 California conviction for obtaining a controlled substance by fraud.
- He reentered the U.S. in 1995, obtained lawful permanent resident status, and then lied on his residency application about prior arrests/convictions.
- DHS charged removability on four grounds, including that the 1993 conviction was a crime involving moral turpitude (CIMT) and that he committed visa fraud.
- At the immigration hearing Guzman-Rivadeneira's first attorney expressly conceded all four grounds of removability; the IJ accepted the concessions and denied relief (waiver and cancellation) as a result.
- On appeal to the BIA, new counsel argued the CIMT determination as a pure legal question but did not seek relief from the original counsel’s concession under Matter of Velasquez nor comply with Matter of Lozada procedural requirements for ineffective-assistance claims.
- The BIA affirmed, relying on the principle that aliens are bound by their counsel’s concessions and noting Guzman-Rivadeneira failed to satisfy Lozada; the Seventh Circuit denied review due to procedural defaults.
Issues
| Issue | Guzman-Rivadeneira's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the 1993 conviction is a crime involving moral turpitude (CIMT) | The conviction is not a CIMT under the categorical approach because it requires no intent to defraud | Bound by counsel’s concession that it was a CIMT; BIA/IJ properly relied on that concession | Court declined to reach the merits because of procedural defaults; conceded CIMT stands for purposes of the record |
| Whether Velasquez exception relieves petitioner of counsel’s concession | Velasquez exception should apply because concession was unreasonable, unjust, and legally incorrect | Petitioner failed to invoke Velasquez before the BIA; exhaustion and BIA discretion bar relief | Velasquez not applied—petitioner failed to exhaust and BIA did not err in not granting relief sua sponte |
| Whether Lozada procedural requirements for ineffective-assistance claims can be excused | Lozada should be excused; counsel’s ineffectiveness is clear and merits reopening | Lozada must be satisfied; Seventh Circuit rejects Ninth Circuit’s exception for "clear and obvious" ineffectiveness | Lozada requirements not excused; ineffective-assistance claim denied for failure to comply |
| Jurisdiction to review CIMT legal question | Petitioner urges review of underlying legal question (CIMT) | Government cites 8 U.S.C. §1252(a)(2)(C) bar on review of criminal removability | Court has jurisdiction over legal questions under §1252(a)(2)(D) but declines to reach them due to procedural defaults |
Key Cases Cited
- Moral-Salazar v. Holder, 708 F.3d 957 (7th Cir. 2013) (jurisdictional limits on review of criminal removability)
- Duarte-Salagosa v. Holder, 775 F.3d 841 (7th Cir. 2014) (administrative exhaustion required for BIA arguments)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (7th Cir. 2011) (Velasquez framework for counsel concessions)
- Shah v. Holder, 736 F.3d 1125 (7th Cir. 2013) (courts cannot review BIA decisions not to act sua sponte)
- Patel v. Gonzales, 496 F.3d 829 (7th Cir. 2007) (importance of Lozada requirements for ineffective-assistance claims)
- Marinov v. Holder, 687 F.3d 365 (7th Cir. 2012) (declining to relax Lozada requirements)