Martinez Soriano v. Garland

M
     19-1841
     Martinez Soriano v. Garland
                                                                                          BIA
                                                                                  Thompson, IJ
                                                                                  A073 548 354

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   20th day of May, two thousand twenty-one.
 5
 6   PRESENT:
 7             JOHN M. WALKER, JR.,
 8             MICHAEL H. PARK,
 9             WILLIAM J. NARDINI,
10                  Circuit Judges.
11   _____________________________________
12
13   ALBERTO MARTINEZ SORIANO,
14
15                                 Petitioner,
16
17                     v.                                               19-1841
18
19   MERRICK B. GARLAND, UNITED STATES
20   ATTORNEY GENERAL,
21
22                  Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                             Alberto Martinez Soriano, pro se,
26                                               Newburgh, NY.
27
28   FOR RESPONDENT:                             Ethan P. Davis, Acting Assistant
29                                               Attorney General; Shelley R. Goad,
30                                               Assistant Director; Elizabeth Chapman,
31                                               Trial Attorney, Office of Immigration
32                                               Litigation, United States Department
33                                               of Justice, Washington, DC.
1         UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5         Petitioner Alberto Martinez Soriano, a native and citizen of

6    Mexico, seeks review of a May 23, 2019 decision of the BIA,

7    dismissing as untimely his appeal of an October 26, 2018 order of

8    an Immigration Judge (“IJ”) pretermitting his application for

9    cancellation of removal and ordering him removed.        In re Alberto

10   Martinez Soriano, No. A073 548 354 (B.I.A. May 23, 2019), aff’g

11   No. A073 548 354 (Immig. Ct. N.Y.C. Oct. 26, 2018).      We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history.

14        Under the circumstances, we review only the BIA’s decision

15   dismissing as untimely Martinez Soriano’s appeal of the IJ’s

16   decision.     See Yan Chen v. Gonzales, 

417 F.3d 268

, 271 (2d Cir.

17   2005).     The applicable standards of review are well established.

18   See Khan v. U.S. Dep’t of Justice, 

494 F.3d 255

, 259 (2d Cir. 2007)

19   (reviewing    dismissal   of   appeal   as   untimely   for   abuse   of

20   discretion); Manzur v. U.S. Dep’t of Homeland Sec., 

494 F.3d 281

,

21   288–90 (2d Cir. 2007) (reviewing factual findings for substantial

22   evidence and questions of law de novo); Nwozuzu v. Holder, 726


                                        2

1 F.3d 323

,   326–27   (2d   Cir.   2013)    (reviewing    agency    statutory

2    interpretation under Chevron U.S.A., Inc. v. Natural Res. Def.

3    Council, Inc., 

467 U.S. 837

, 842–44 (1984)).

4           It is undisputed that Martinez Soriano’s February 2019 appeal

5    to the BIA was untimely because it was filed more than 30 days

6    after the IJ’s October 2018 order of removal.                   See 8 C.F.R.

7    § 1003.38(b) (“The Notice of Appeal . . . shall be filed directly

8    with     the      Board . . . within         30    calendar     days      after

9    the . . . mailing of an Immigration Judge’s written decision.”);

10   see also Attipoe v. Barr, 

945 F.3d 76

, 79 (2d Cir. 2019).              “[W]hile

11   under    normal    circumstances     the     BIA   cannot   hear     late-filed

12   appeals,” Zhong Guang Sun v. U.S. Dep’t of Justice, 

421 F.3d 105

,

13   108 (2d Cir. 2005), it may equitably toll the filing period based

14   on ineffective assistance of counsel, see Attipoe, 

945 F.3d at 82

–

15   83.    The BIA did not err in declining to excuse the untimely filing

16   based on Martinez Soriano’s ineffective assistance of counsel

17   claim.

18          To prevail on an ineffective assistance claim, an alien must

19   substantially comply with the procedures laid out in Matter of

20   Lozada, 19 I&N Dec. 637 (B.I.A. 1988), which requires (1) an

21   affidavit detailing what actions former counsel agreed to take,

22   (2) proof that counsel was notified of the allegations and allowed


                                            3
1    to respond, and (3) a statement regarding whether a complaint was

2    filed with a disciplinary authority.     See 

id. at 639

; see also

3    Jian Yun Zheng v. U.S. Dep't of Justice, 

409 F.3d 43

, 46–47 (2d

4    Cir. 2005).   Martinez Soriano complied with the first requirement

5    by submitting an affidavit laying out his agreement with counsel

6    as to at least one basis for his claim (counsel’s failure to oppose

7    pretermission) and the third requirement by submitting complaints

8    he filed, but he failed to comply with the second requirement by

9    showing that he informed counsel of the allegations and provided

10   an opportunity for response.       The second requirement protects

11   against “the potential for abuse . . . apparent where no mechanism

12   exists for allowing former counsel, whose integrity or competence

13   is being impugned, to present his version of events if he so

14   chooses, thereby discouraging baseless allegations.”    Lozada, 19

15   I&N Dec. at 639.   Although we do not require “slavish adherence

16   to the requirements,” we have excused them only where a “claim of

17   ineffective assistance [was] clear on the face of the record,”

18   such as when counsel had been disbarred for similar claims of

19   ineffectiveness or admitted fault.    Yi Long Yang v. Gonzales, 478

20 F.3d 133

, 142–43 (2d Cir. 2007).

21        Because Martinez Soriano failed to comply with the Lozada

22   requirements, he forfeited his ineffective assistance of counsel


                                     4
1    claim, see Jian Yun Zheng, 

409 F.3d at 47,

 and the BIA did not err

2    in declining to excuse the untimely filing of his appeal, see Khan,

3    

494 F.3d at 259

.      Accordingly,    we   do   not    reach    the   BIA’s

4    alternative dispositive determination that Martinez Soriano failed

5    to establish prejudice.        See INS v. Bagamasbad, 

429 U.S. 24

, 25

6    (1976) (“As a general rule courts and agencies are not required to

7    make findings on issues the decision of which is unnecessary to

8    the results they reach.”); Rabiu v. INS, 

41 F.3d 879

, 882 (2d Cir.

9    1994)   (requiring       showing   of   prejudice     to    state    ineffective

10   assistance claim).

11         There is no merit to Martinez Soriano’s argument that the BIA

12   should have found his notice to appear defective under Pereira v.

13   Sessions, 

138 S. Ct. 2105

 (2018), because the notice did not

14   include a hearing date or time. In Pereira, the Supreme Court held

15   that the Immigration and Nationality Act unambiguously requires a

16   notice to appear to include a hearing time and place to trigger

17   the “stop-time rule,” 

138 S. Ct. at 2113-20,

 which cuts off an

18   alien’s accrual of physical presence or residence for the purposes

19   of qualifying for cancellation of removal, see 8 U.S.C. § 1229b(a),

20   (b), (d)(1).      Although Martinez Soriano applied for cancellation,

21   his length of residence and the application of the stop-time rule

22   were not at issue and he was denied relief on alternative grounds.


                                             5
1   Accordingly, Pereira is not relevant to his case.              Any argument

2   that   his   notice   to   appear   did   not   vest   jurisdiction   in   the

3   Immigration Court because it omitted a hearing date and time is

4   foreclosed by Banegas Gomez v. Barr, 

922 F.3d 101

 (2d Cir. 2019).

5   

Id. at 111

–12.

6          For the foregoing reasons, the petition for review is DENIED.

7                                       FOR THE COURT:
8                                       Catherine O’Hagan Wolfe,
9                                       Clerk of Court




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