Jose Leon-Nicolas v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JOSE LEON-NICOLAS,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 20-9628
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, and HOLMES, Circuit Judges.
_________________________________
Petitioner Jose Leon-Nicolas is a native and citizen of Guatemala who entered
the United States without inspection. An immigration judge (IJ) found him
removable and that he had abandoned his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). The IJ also
denied a motion to reopen, and the Board of Immigration Appeals (BIA) dismissed
his appeal from that order. Mr. Leon-Nicolas now petitions for review of the BIA’s
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 20, 2021
Christopher M. Wolpert
Clerk of Court
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decision regarding his motion to reopen. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1), and we deny the petition.
A. BACKGROUND & PROCEDURAL HISTORY
Mr. Leon-Nicolas entered the United States without inspection sometime in
2013. The government commenced removal proceedings against him in November
2018. Mr. Leon-Nicolas then applied for asylum, withholding of removal, and CAT
protection. At a March 2019 master calendar hearing, the IJ told Mr. Leon-Nicolas
that he needed to complete biometrics and that failure to do so could result in
abandonment of his application. R. at 96; see also id. at 160 (explaining the
biometrics process).
Just days before his asylum hearing set for February 4, 2020, Mr. Leon-
Nicolas filed an emergency motion to continue, stating that his “[c]ounsel’s staff
failed to comply with [his] biometrics appointment request.” R. at 156. The IJ
denied a continuance and convened the hearing as scheduled. Mr. Leon-Nicolas
acknowledged that he had not completed the biometrics requirement, and his attorney
took responsibility for this lapse. The IJ deemed Mr. Leon-Nicolas to have
abandoned his applications for relief. See 8 C.F.R. § 1003.47(d).
Mr. Leon-Nicolas soon hired a new attorney and filed a motion to reopen,
claiming ineffective assistance of former counsel. See R. at 120–26. The motion
included a letter from former counsel to Mr. Leon-Nicolas that, although not
admitting misconduct, stated she would refund her fee within two weeks. See R. at
133–36.
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The IJ evaluated the motion to reopen under Matter of Lozada, which held that
ineffective assistance of counsel might justify reopening “if the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his
case,” and the movant shows “he was prejudiced by his representative’s
performance.” 19 I. & N. Dec. 637, 638 (B.I.A. 1988). 1 In order for an ineffective
assistance of counsel claim to be considered on its merits, Lozada provides that a
movant must submit: (1) an affidavit from the movant “attesting to the relevant
facts,” such as “a statement that sets forth in detail” what the former attorney agreed
but failed to do; (2) the former attorney’s response to the movant’s accusations, if
available; and (3) a statement “whether a complaint has been filed with appropriate
disciplinary authorities regarding such representation, and if not, why not.” Id. at
639. The third requirement demands the movant “adequately” or “reasonably”
explain any decision not to file a bar complaint. Matter of Rivera-Claros, 21 I. & N.
Dec. 599, 605 (B.I.A. 1996).
In Mr. Leon-Nicolas’s case, the IJ found the first and second Lozada
requirements satisfied. As for the third requirement, Mr. Leon-Nicolas admitted he
had not filed a bar complaint against former counsel because “the ordinary purposes
for a complaint were already fulfilled” by her admission of error on the record. R. at
1 Lozada was vacated by Attorney General Michael Mukasey in 2009, see
Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009). But it was then essentially
reinstated by Attorney General Eric Holder, see Matter of Compean, 25 I. & N. Dec.
1 (A.G. 2009). Therefore, it is the appropriate standard for assessing motions to
reopen for ineffective assistance of counsel. Id. at 3.
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100. The IJ deemed this explanation inadequate and denied the motion to reopen on
that basis. R. at 100. The IJ also found that Mr. Leon-Nicolas had failed to establish
prejudice from counsel’s alleged misconduct because he had been told and
understood completing biometrics was his responsibility. R. at 99.
Mr. Leon-Nicolas appealed to the BIA. In a single-member summary
disposition, the BIA adopted and affirmed the IJ’s decision. R. at 3. The BIA also
added a third reason why denial of the motion to reopen was proper: Mr. Leon-
Nicolas did not demonstrate prima facie eligibility for asylum, withholding of
removal, or CAT protection. R. at 3–4. Mr. Leon-Nicolas timely filed a petition for
review with this court.
B. DISCUSSION
“We review BIA decisions on motions to reopen . . . for an abuse of
discretion.” Berdiev v. Garland, — F.4th — , Nos. 20-9542, 20-9602, 2021 WL
4269558, at *3 (10th Cir. Sept. 21, 2021). We will find an abuse of discretion when
the BIA “provides no rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary or conclusory
statements.” Id. (quoting Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017)). A
single-member BIA order “constitutes the final order of removal” we review, but we
may consult the IJ’s decision where, as here, “the BIA incorporates by reference the
IJ’s rationale or repeats a condensed version of its reasons while also relying on the
IJ’s more complete discussion.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th
Cir. 2006).
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In most circumstances, including those present here, an alien may file a motion
to reopen removal proceedings. 8 U.S.C. § 1229a(c)(7)(A). “A motion to reopen
proceedings shall state the new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits and other evidentiary
material.” 8 C.F.R. § 1003.23(b)(3). Such a motion “will not be granted unless the
Immigration Judge is satisfied that evidence sought to be offered is material and was
not available and could not have been discovered or presented at the former hearing.”
Id.
Mr. Leon-Nicolas moves to reopen his case on the basis of ineffective
assistance of counsel. The BIA has created three requirements necessary for a
successful motion to reopen on this basis. Lozada, 19 I. & N. Dec. at 639. These
threshold requirements precede the regulation-defined analysis and burdens described
above. See id. Because the IJ found that Mr. Leon-Nicolas met the first two
requirements, the question here is whether the agency abused its discretion in
denying his motion to reopen for lack of compliance with Lozada’s third, bar-
complaint requirement.
Mr. Leon-Nicolas argues that this court should adopt a substantial-compliance
standard that could allow him to succeed without fulfilling all three of the Lozada
requirements. Aplt. Br. at 8–16. In his motion to reopen, Mr. Leon-Nicolas said he
had “chosen not to file a bar complaint against former counsel” because former
counsel admitted her mistake (in her filings, in open court, and directly to Mr. Leon-
Nicolas) and she promised to refund her entire fee. R. at 125–26. This, Mr. Leon-
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Nicolas claimed, “clearly meets the concerns of the [BIA] regarding baseless
allegations and notice to the attorney of the standards of representation in
immigration court.” Id. at 126.
Mr. Leon-Nicolas’s current counsel also provided an affidavit in support of the
motion to reopen. He opined that “[s]hould [Mr. Leon-Nicolas] file a bar complaint,
the [Utah] Office of Professional Conduct would not ask [former counsel] to do
anything more than she has already done.” R. at 139. He further explained that Mr.
Leon-Nicolas’s decision not to file a complaint was based on his advice, informed by
reputational concerns and his belief that former counsel deserved a break under the
circumstances. R. at 139–40.
We look, as we must, to the record and the agency’s rationale for its decisions.
Berdiev, 2021 WL 4269558, at *3. In doing so, we find the BIA’s decision is not an
abuse of discretion. The IJ found Mr. Leon-Nicolas’s explanation inadequate and
rejected his argument that a bar-complaint’s primary purposes were already fulfilled.
R. at 100. The IJ emphasized that “preventing collusion” and “policing immigration
courts” were important reasons for the bar-complaint requirement. The IJ further
noted that “in unpublished decisions, the Tenth Circuit has found that the purposes of
a complaint laid out by the BIA, are . . . ‘not served by the counsel’s own view of the
gravity of error.’” Id. (quoting Yero v. Gonzales, 236 F. App’x 451, 454 (10th Cir.
2007)). Affirming, adopting, and citing to this reasoning by the IJ, the BIA explained
that “speculation by [Mr. Leon-Nicolas’s current] counsel about the usefulness of
filing a bar complaint is not a substitute for filing a bar complaint.” R. at 3.
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The BIA also noted that “the explanation and assertions of counsel regarding
the usefulness of filing a bar complaint are not entitled to any evidentiary weight.”
R. at 3. Mr. Leon-Nicolas takes exception to this statement and claims that these
parts of his attorney’s affidavit “could have just as easily been part of the body of the
motion to reopen in that they [comprised] simply legal arguments.” Aplt. Br. at 21.
Not only did the BIA consider counsel’s assertions to the extent they had value, see
R. at 3, but such explanations do not fulfill Lozada’s bar-complaint requirement.
The agency provided explicit, rational reasons for finding that Mr. Leon-
Nicolas did not provide an adequate explanation for failing to file a bar complaint.
Specifically, the IJ and BIA concluded that, if accepted, Mr. Leon-Nicolas’s and his
counsel’s assertions about the usefulness of filing a bar complaint would undermine
Lozada’s purposes of policing the bar and preventing collusion between aliens and
attorneys. R. at 3, 100. This is a rational explanation consistent with the agency’s
prior statements on that topic, see, e.g., Rivera-Claros, 21 I. & N. Dec. at 603–07.
Accordingly, we see no abuse of discretion. See Berdiev, 2021 WL 4269558, at *3.
This rationale is also consistent with BIA’s subsequent, on-point decision in
Matter of Melgar. See 28 I. & N. Dec. 169 (BIA 2020). In Melgar, the BIA
clarified, “Lozada did not hold that any such explanation, however insufficient,
would satisfy [the bar-complaint] requirement.” Id. at 170. The petitioner in that
case explained that he had not filed a bar complaint because his lawyer had taken
responsibility for and admitted a clear error. Id. The BIA explained that the bar-
complaint requirement could not be “so easily discharged, otherwise [its] purpose . . .
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is rendered inconsequential.” Id.; see also Lozada, 19 I. & N. Dec. at 639 (noting
that this is a “high standard”). Therefore, the BIA denied petitioner’s motion to
reopen. Melgar dictates that when an attorney accepts responsibility for errors on
behalf of a client, a bar complaint is still required to ensure effective policing of bar
misconduct and prevent collusion between aliens and attorneys. 28 I. & N. Dec. at
170–71.
Finally, Mr. Leon-Nicolas briefly argues that “there is a glaring discrepancy”
between immigration respondents and criminal defendants because, in the criminal
context, “there is no demand that litigation against former counsel be commenced
before [courts will] review[] a[n ineffective-assistance] claim.” Aplt. Br. at 28–29.
Mr. Leon-Nicolas claims that this violates immigration respondents’ due process
rights. Beyond merely noting the difference between the immigration and criminal
contexts, Mr. Leon-Nicolas neither develops this argument nor grounds it in any case
or law. He therefore waives the argument. See Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 679 (10th Cir. 1998).
The BIA did not abuse its discretion in denying Mr. Leon-Nicolas’s motion to
reopen based on his failure to fulfill Lozada’s bar-complaint requirement. We
therefore need not reach the agency’s alternative conclusions concerning prejudice
and prima facie evidence of merited relief. See Griffin v. Davies, 929 F.2d 550, 554
(10th Cir. 1991).
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Accordingly, we DENY the petition for review.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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