Gustavo Figueroa Nieves v. Attorney General United States
20-3452
| 3rd Cir. | Jul 8, 2021Background
- Petitioners Gustavo and Patricia Figueroa are Ecuadorian natives who entered the U.S. without authorization and have two U.S.-resident children, including B.E., diagnosed with Separation Anxiety Disorder after his biological father's removal.
- Petitioners applied for asylum in 2014 (later withdrawn) and were served Notices to Appear charging unlawful presence; they conceded removability and sought cancellation of removal.
- Their original counsel (Leonard Hecht) submitted documentary evidence and a psychologist’s report; Hecht allegedly missed hearings, sent underprepared associates, failed to call the psychologist, and did not adequately prepare Petitioners to testify.
- The IJ denied cancellation, finding Petitioners failed to show "exceptional and extremely unusual hardship" to their children; the IJ noted B.E. would not be separated from family if returned to Ecuador.
- The BIA affirmed, rejected the ineffective-assistance claim under Matter of Lozada procedural standards, and alternatively held that even if Lozada were satisfied Petitioners failed to show prejudice because the additional evidence would not likely change the outcome.
- Petitioners sought remand or abeyance pending U-visa applications; the court dismissed that request for failure to exhaust before the BIA and because USCIS has exclusive U-visa jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel (Lozada compliance & prejudice) | Hecht’s failures (missed hearings, unprepared counsel, no psychologist testimony, poor prep) prevented reasonable presentation and prejudiced outcome | BIA: Petitioners failed Lozada procedural steps; alternatively, no prejudice because proposed extra evidence (unsigned letters, photos, psychologist testimony) wouldn’t change result | Court assumed Lozada satisfied but held no substantial prejudice; denial of ineffective-assistance claim affirmed |
| Remand/abeyance for pending U-visa applications | Petitioners asked remand/abeyance to allow USCIS U-visa adjudication which could affect removal | Government/BIA: Petitioners did not raise U-visa issue before BIA; USCIS has exclusive jurisdiction over U visas and U filing does not stay removal | Request dismissed for lack of exhaustion; remand/abeyance denied |
Key Cases Cited
- Fadiga v. Att'y Gen., 488 F.3d 142 (3d Cir. 2007) (standard for ineffective-assistance claims and Lozada procedural requirements)
- Al-Saka v. Sessions, 904 F.3d 427 (6th Cir. 2018) (no prejudice where petitioner provided no affidavit showing how live testimony would change outcome)
- Calderon-Rosas v. Att'y Gen., 957 F.3d 378 (3d Cir. 2020) (prejudice found where counsel’s omissions concealed children’s medical hardships)
- Joseph v. Att'y Gen., 465 F.3d 123 (3d Cir. 2006) (describes liberal exhaustion notice standard to the BIA)
- Zhi Fei Liao v. Att'y Gen., 910 F.3d 714 (3d Cir. 2018) (exhaustion requires presenting the issue clearly to the BIA)
- Bin Lin v. Att'y Gen., 543 F.3d 114 (3d Cir. 2008) (court will not require the BIA to guess which issues are raised)