939 F.3d 44
1st Cir.2019Background
- Petitioner Romilson Batista Ferreira, a Brazilian national, sought review of the BIA’s dismissal of his appeal of an immigration-court removal order and denial of cancellation of removal.
- Ferreira argued his Notice to Appear (NTA) was defective under Pereira v. Sessions because it omitted the date and time of the initial hearing, so the immigration court lacked jurisdiction.
- The BIA rejected Ferreira’s ineffective-assistance-of-counsel claim because he failed to comply with Matter of Lozada’s procedural requirements.
- Ferreira raised ineffective-assistance claims for the first time on appeal, alleging counsel advised him not to testify and failed to pursue adjustment through his U.S. citizen wife.
- The First Circuit declined Ferreira’s Pereira jurisdictional challenge, following the court’s reasoning in a recent opinion, and upheld the BIA’s denial of his ineffective-assistance claim because Ferreira did not satisfy Lozada and offered no adequate excuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA lacking date/time divests immigration court of jurisdiction under Pereira | Ferreira: NTA without date/time is defective under Pereira, so removal order is void | Government/BIA: NTA was sufficient to commence proceedings; Pereira does not render this NTA jurisdictionally ineffective | Court: Rejected Ferreira; NTA effective to commence proceedings, Pereira argument fails |
| Whether Lozada requirements apply to ineffective-assistance claims first raised on direct appeal and whether a "plain on its face" exception exists | Ferreira: Lozada applies only to motions to reopen; alternatively, counsel’s ineffectiveness was so blatant Lozada should not apply | BIA: Lozada applies to claims raised on appeal; no blanket plain-face exception; require Lozada compliance absent good cause | Court: Lozada applies to claims on direct review; no blanket exception; BIA did not err in denying claim for failure to comply |
Key Cases Cited
- Pulisir v. Mukasey, 524 F.3d 302 (1st Cir. 2008) (standard of review for factual and legal determinations in removal cases)
- Pereira v. Sessions, 138 S. Ct. 2105 (U.S. 2018) (NTA notice requirement issue)
- Pineda v. Whitaker, 908 F.3d 836 (1st Cir. 2018) (Lozada recognized as leading standard for ineffective-assistance claims)
- García v. Lynch, 821 F.3d 178 (1st Cir. 2016) (Lozada application and limits on exceptions)
- Orehhova v. Gonzales, 417 F.3d 48 (1st Cir. 2005) (ineffective-assistance precedent)
- Saakian v. INS, 252 F.3d 21 (1st Cir. 2001) (Lozada purpose and procedural requirements)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (criminal ineffective-assistance standard not applicable in removal proceedings)
- Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (Aliens not entitled to Sixth Amendment protections in removal proceedings)
- Guerrero-Santana v. Gonzales, 499 F.3d 90 (1st Cir. 2007) (ineffective-assistance claims tied to Fifth Amendment due process)
- Falae v. Gonzáles, 411 F.3d 11 (1st Cir. 2005) (treatment of motions to remand as motions to reopen)