Maria Lowe v. Jefferson Sessions, III
2017 U.S. App. LEXIS 19477
5th Cir.2017Background
- Maria Lowe, a Mexican national, entered the U.S. unlawfully in 1996 and received adjustment of status to LPR in 2007.
- In 2010 Lowe was convicted of aiding and abetting improper entry; DHS initiated removal under 8 U.S.C. § 1227(a)(1)(E) alleging her 2007 adjustment constituted an "entry."
- At the immigration hearing Lowe contested the conviction; the IJ found the 2007 adjustment was an entry and that the conviction rendered her removable.
- Lowe appealed to the BIA arguing only that her conviction did not qualify under § 1227; the BIA dismissed the appeal in March 2015. No petition for review followed.
- In June 2015 Lowe filed a motion to reopen asserting ineffective assistance of counsel (IAC) for failing to argue that her 1996 entry, not the 2007 adjustment, was the operative entry; the BIA denied reopening and later denied reconsideration. Lowe petitioned this court, pressing only the entry-date argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying Lowe's motion to reconsider a motion to reopen | Lowe: BIA erred; her 2007 adjustment should not count as an "entry," and her IAC claim justified reopening | DHS/BIA: BIA permissibly denied reconsideration; motion lacked new evidence and IAC was not briefed on appeal | Denied — review is highly deferential; court finds waiver and no reversible abuse of discretion |
| Whether adjustment of status (2007) constitutes an "entry" for § 1227(a)(1)(E) removal | Lowe: Only the 1996 unlawful entry should count; adjustment is not a separate entry | BIA: Adjustment of status constitutes an entry as a matter of law | Court did not decide the substantive issue; declined to rule on merits because of waiver and procedural posture |
| Whether Lowe preserved an IAC claim sufficient to support reopening | Lowe: Original counsel was ineffective for failing to raise the entry-date argument; this supports reopening | DHS/BIA: Motion lacked supporting evidence or arguments showing counsel was ineffective or prejudice | Court: Lowe waived the IAC claim by failing to brief it here; BIA reasonably denied reopening absent evidentiary support |
Key Cases Cited
- INS v. Abudu, 485 U.S. 94 (motion to reopen reviewed for abuse of discretion)
- Singh v. Gonzales, 436 F.3d 484 (5th Cir. 2006) (abuse-of-discretion standard for motions to reopen/reconsider)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (highly deferential review of motion to reopen)
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (failure to brief an issue constitutes waiver)
- Thibodeaux v. United States, 211 F.3d 910 (5th Cir. 2000) (briefing/waiver principles)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (standards for BIA review scope)
- Marques v. Lynch, 834 F.3d 549 (5th Cir. 2016) (controlling precedent on entry/adjustment issues cited by dissent)
- Martinez v. Mukasey, 519 F.3d 582 (5th Cir. 2008) (precedent on adjustment-of-status as entry cited by dissent)