Jose Luis Salazar-Lopez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS SALAZAR-LOPEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 16-74014
Agency No. A205-989-983
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2022**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and FITZWATER,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Petitioner Jose Luis Salazar-Lopez, a citizen of Mexico, seeks review of the
Board of Immigration Appeals’ (BIA) decision denying his motion to reopen his
immigration proceedings based on ineffective assistance of counsel. We have
jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
We review the agency’s denial of a motion to reopen for abuse of discretion.
Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). The agency abuses its discretion
when its “decision is ‘arbitrary, irrational or contrary to law.’” Id. at 995–96 (quoting
Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004)). We review legal questions
de novo. Kwong v. Holder, 671 F.3d 872, 880 (9th Cir. 2011). To establish
ineffective assistance of counsel in an immigration proceeding, a petitioner must
show (1) that “the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case,” and (2) prejudice. Lin v. Ashcroft,
377 F.3d 1014, 1023–24 (9th Cir. 2004) (quoting Lopez v. INS, 775 F.2d 1015, 1017
(9th Cir. 1985)). “Our ‘scrutiny of counsel’s performance must be highly
deferential.’” Torres-Chavez v. Holder, 567 F.3d 1096, 1101 (9th Cir. 2009)
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). “Where, as here, the
Board summarily affirms the IJ’s decision, this Court reviews the IJ’s decision as
the final agency action.” Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1218 (9th Cir.
2016).

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3
Salazar-Lopez argues that the agency erred in denying his motion to reopen
on the basis that he failed to comply with In re Lozada’s procedural requirements.
See 19 I. & N. Dec. 637 (B.I.A. 1988). Even assuming this was error, Salazar-Lopez
has not established that the agency erred in denying his motion on the independent
basis that he failed to establish that his counsel was ineffective.1
Salazar-Lopez argues that his counsel was ineffective for not helping him
apply for asylum, withholding of removal, or relief under the Convention Against
Torture. This argument fails. An asylum application would have been time-barred.
See 8 U.S.C. § 1158(a)(2)(B). Moreover, Salazar-Lopez admitted that he discussed
his fear of returning to Mexico with attorney Malek and that she advised him he
probably would not qualify for relief given that he could relocate within Mexico to
avoid future harm from his ex-wife’s family. See Torres-Chavez, 567 F.3d at 1101
(explaining that counsel’s performance is not deficient where she makes tactical
decisions that fall within “the wide range of reasonable representation”). Further,
attorney Malek informed Salazar-Lopez that he was free to seek another lawyer who
may have assessed his claim differently.
1Salazar-Lopez also argues that the agency erred by improperly giving
substantial weight to attorney Malek’s letter response to Salazar-Lopez’s state bar
complaint. We reject this argument because the IJ’s decision was primarily based on
Salazar-Lopez’s own declaration.

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4
Salazar-Lopez’s argument that attorney Malek was ineffective for failing to
challenge the constitutionality of his initial encounter with immigration officials also
fails. Salazar-Lopez conceded that he did not raise to his counsel any concerns
regarding his encounter with immigration officials, and that he was not “very good
at communicating” with his counsel.
Lastly, the agency did not err in rejecting Salazar-Lopez’s argument that his
counsel was deficient for failing to challenge service of his notice to appear (NTA).
Salazar-Lopez notes that the government failed to check the box on his notice
confirming that he was timely given a list of free legal service providers. Failure to
challenge the NTA on this ground falls within “the wide range of reasonable
representation,” particularly where the record indicates that this list was provided to
Salazar-Lopez. Torres-Chavez, 567 F.3d at 1101.
PETITION DENIED.

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