Marco Correa-Rivera v. Eric H. Holder Jr.
2013 U.S. App. LEXIS 2556
| 9th Cir. | 2013Background
- Correa-Rivera entered the United States illegally about thirty years ago and surrendered to immigration authorities in 2006.
- At an IJ hearing, Correa-Rivera conceded removability but sought cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ ordered Correa-Rivera to file his cancellation application by April 6, 2007; Correa-Rivera gave the forms to his attorney to file.
- The attorney failed to file any documents by the deadline, and no hearing or notice was provided to Correa-Rivera about the overdue filing.
- The IJ deemed the application abandoned, and the BIA affirmed, holding Correa-Rivera failed Lozada requirements for ineffective-assistance claims.
- The court held the BIA abused Lozada by misapplying its requirements, noted the proper vehicle was a motion to reopen, and ultimately granted the petition for review and remanded for reopening of Correa-Rivera’s cancellation application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ineffective-assistance claim was appropriately raised. | Correa-Rivera should be allowed to pursue its IA claim via appeal. | HOLDER contends Lozada procedures should apply to dismissal of late filing. | Motion to reopen appropriate; appeal improper for IA claim. |
| Whether the BIA correctly applied Lozada’s three requirements. | Lozada requirements were satisfied by disclosure of the bar complaint. | BIA required probative proof of the bar complaint and proper notice to counsel. | BIA erred in requiring evidence beyond Lozada’s language. |
| Whether the third Lozada requirement is satisfied by a statement in the motion. | Motion should reflect whether a complaint was filed with the bar. | The motion must include proof of the complaint. | Text of Lozada’s third requirement is hortatory; need not prove bar filing. |
| Whether the government can show prejudice from counsel’s failure to file. | Counsel’s failure prevented Correa-Rivera from presenting his case. | Prejudice analysis disputed; no filing. | Prejudice shown; failure affected outcome; remand for reopening. |
| What is the proper remedy given ineffective assistance? | Courts should reopen and allow filing for cancellation. | No relief without proper record. | Remand to reopen and allow cancellation application. |
Key Cases Cited
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (motion to reopen typically the proper vehicle for IA claims; record-based)
- Patel v. Ashcroft, 378 F.3d 610 (7th Cir. 2004) (motion to reopen akin to reconsideration with new facts)
- Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (jurisdiction over motion to reopen; ties to IA claims)
- Reyes v. Ashcroft, 358 F.3d 592 (9th Cir. 2004) (second Lozada requirement must be satisfied for notice to former counsel)
- Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (counsel’s failure to file suspension of deportation found prejudicial)
- Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) (prejudice standard for IA failure to file; hard to overstate impact)
- Ram v. Mukasey, 529 F.3d 1238 (9th Cir. 2008) (prejudice from counsel’s failure to file; supports remand)