Hector Castillo-Saldana v. Merrick Garland
13-70720
| 9th Cir. | Jul 23, 2021Background:
- Hector Alejandro Castillo-Saldana, a Mexican national, sought cancellation of removal; an IJ denied relief and the BIA dismissed his appeal.
- Castillo-Saldana claimed ineffective assistance of former counsel and argued the BIA violated his due process rights by applying Matter of Lozada requirements.
- The BIA treated his appeal as a motion to reopen and required compliance with Lozada; Castillo-Saldana did not satisfy those procedural requirements.
- The alleged ineffectiveness was not plain on the face of the record, and Castillo-Saldana also failed to demonstrate prejudice from counsel's conduct.
- Castillo-Saldana raised an additional claim that the IJ failed to advise him of eligibility for relief; that claim was not presented to the agency.
- The Ninth Circuit reviewed legal questions de novo and motions to reopen for abuse of discretion, denied in part and dismissed in part the petition for review; removal stay remains until mandate.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA erred by applying Matter of Lozada to an ineffective-assistance claim raised on appeal | Castillo-Saldana: applying Lozada violated due process / was improper | BIA: appeal functioned as a motion to reopen; Lozada is the correct procedural test | No error; BIA properly applied Lozada and did not violate due process |
| Whether BIA abused its discretion in declining to reopen for ineffective assistance where Lozada was not complied with | Castillo-Saldana: BIA should reopen despite Lozada noncompliance | BIA: failure to satisfy Lozada is fatal unless ineffectiveness is plain on the record | No abuse of discretion; failure to comply with Lozada and lack of plain-record ineffectiveness justified denial |
| Whether Castillo-Saldana established prejudice from counsel's alleged ineffectiveness | Castillo-Saldana: counsel's errors prejudiced his removal relief prospects | Government: no prejudice shown; conviction record is inconclusive as to dispositive elements | Held against Castillo-Saldana; he failed to show prejudice and cannot establish eligibility in light of an inconclusive record |
| Whether the court may review claim that the IJ failed to advise him of eligibility for relief | Castillo-Saldana: IJ failed to advise him of relief eligibility | Government: claim was not presented to the agency | Court lacks jurisdiction to review that unexhausted claim |
Key Cases Cited
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (de novo review for legal questions; abuse-of-discretion standard for motions to reopen)
- Correa-Rivera v. Holder, 706 F.3d 1128 (9th Cir. 2013) (an appeal to the BIA can operate as a motion to reopen for ineffective-assistance claims)
- Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (prejudice required to prevail on ineffective-assistance/due process challenge)
- Tamang v. Holder, 598 F.3d 1083 (9th Cir. 2010) (failure to satisfy Matter of Lozada is fatal where ineffectiveness is not plain on the record)
- Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (prejudice requirement in ineffective-assistance claims)
- Pereida v. Wilkinson, 141 S. Ct. 754 (2021) (a removal relief applicant cannot establish eligibility when the conviction record is inconclusive as to which statutory elements were violated)
- Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency)