Sione v. Sessions, 700 F. App'x 786

Background

Sitela Sione, a Tongan national and lawful permanent resident since 2006, applied for U.S. citizenship in 2011; CIS discovered she falsely stated she was unmarried on her earlier LPR application and denied naturalization, charging removability under 8 U.S.C. §1227(a)(1)(A).
Sione conceded removability but sought a discretionary waiver under 8 U.S.C. §1227(a)(1)(H); at removal proceedings she admitted the misstatement and claimed she was told by immigration officer Manisela Sitake to say she was unmarried.
The Immigration Judge (IJ) subpoenaed and heard Sitake, who denied knowing Sione or advising her; the IJ credited Sitake, disbelieved Sione, and denied a favorable exercise of discretion for the waiver.
Sione appealed to the BIA, challenging the IJ’s credibility findings, the decision to summon Sitake, and asking for remand to present ineffective-assistance-of-counsel evidence; a single BIA member dismissed the appeal and denied remand.
On appeal to the Tenth Circuit Sione raised four claims: (1) BIA should have referred the case to a three-member panel; (2) IJ credibility finding unsupported by substantial evidence; (3) denial of due process (failure to call corroborating witness); and (4) BIA erred by denying remand to present ineffective-assistance evidence.
The Tenth Circuit dismissed the first three claims for lack of jurisdiction and affirmed the BIA’s denial of remand (treating it as a motion to reopen), concluding the BIA did not abuse its discretion under the Lozada screening requirements and gave rational reasons for denial.

Issues

Issue	Sione's Argument	Government's Argument	Held
Whether BIA erred by not referring to a three-member panel	BIA violated its own regs; case met criteria for three-member assignment	Court lacks jurisdiction to review denial absent review of underlying discretionary merits	Dismissed for lack of jurisdiction; cannot review without reaching merits
Whether IJ’s credibility finding lacked substantial evidence	IJ’s adverse credibility finding unsupported by record	Credibility findings are factual and discretionary, not reviewable here	Dismissed for lack of jurisdiction; credibility findings are factual determinations
Whether Sione was denied due process by IJ’s procedure (not calling mother)	Failure to call mother denied a fundamentally fair hearing	Claim not exhausted before BIA; BIA could have remedied procedural errors	Dismissed for failure to exhaust administrative remedies; court won’t review
Whether BIA abused discretion in denying remand/reopening for ineffective assistance	Sione sought remand to present Lozada-based ineffective-assistance claim; attorneys conflicted/admitted error	Sione failed Lozada’s requirements (no bar complaint, inadequate explanation) and record does not show ineffective assistance or unreasonable tactics	Affirmed: BIA did not abuse discretion in denying remand/motion to reopen

Key Cases Cited

Batalova v. Ashcroft, 355 F.3d 1246 (10th Cir. 2004) (permitting review of BIA refusal to refer where underlying merits review was possible)
Tsegay v. Ashcroft, 386 F.3d 1347 (10th Cir. 2004) (distinguishing Batalova; declining review when merits are not reviewable)
Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005) (jurisdictional limits on review of discretionary waiver denials)
Htun v. Lynch, 818 F.3d 1111 (10th Cir. 2016) (credibility findings are factual determinations)
Alzainati v. Holder, 568 F.3d 844 (10th Cir. 2009) (motions styled as remand may be treated as motions to reopen)
Akinwunmi v. INS, 194 F.3d 1340 (10th Cir. 1999) (failure to exhaust administrative remedies bars review)
Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008) (BIA authority to correct procedural errors; exhaustion required for procedural objections)
Molina v. Holder, 763 F.3d 1259 (10th Cir. 2014) (standard for abuse of discretion in BIA denial of motions to reopen)
Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015) (attorney tactical decisions are not ineffective assistance if objectively reasonable)