Jose Angel Reyes Carbajal v. LORETTA E. LYNCH, Attorney General of the United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1150
JOSE ANGEL REYES CARBAJAL,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: May 10, 2016 Decided: July 27, 2016
Before MOTZ, KING, and HARRIS, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Maris J. Liss, Silver Spring, Maryland, for Petitioner.
Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Patricia B. Minikon, MINIKON
LAW, LLC, Greenbelt, Maryland, for Petitioner. Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Shelley R.
Goad, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 2005, petitioner Jose Angel Reyes Carbajal, a native of
Honduras unlawfully present in the United States, was placed in
removal proceedings and voluntarily departed the country. Two
years later, he unlawfully returned, triggering the “unlawful-
entry bar,” which renders inadmissible aliens who attempt to
reenter the country after previous immigration violations. See
8 U.S.C. § 1182(a)(9)(C)(i)(I). When the government again
sought to remove him, Reyes Carbajal argued that this bar to his
admissibility should be excused because his original 2005
proceeding had been rendered fundamentally unfair by the
deficient performance of his counsel. Because we find that
Reyes Carbajal’s inadmissibility was caused by his independent
decision to return to the United States unlawfully and not by
any alleged defect in his counsel’s performance, we deny the
petition without reaching the merits of Reyes Carbajal’s
ineffective assistance claim.
I.
A.
Reyes Carbajal originally entered the United States in
2000, at the age of fifteen. The following year, his father
filed an I-130 visa petition on his behalf. If approved, the
visa would classify Reyes Carbajal as an unmarried child of a

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lawful permanent resident, allowing him to remain in the
country.
In 2004, with the I-130 visa petition still pending, the
government placed Reyes Carbajal in removal proceedings. Reyes
Carbajal explained that he intended to seek an adjustment of
status if a visa became available, and the immigration judge
granted a nine-month continuance to await action on the visa
petition. In connection with the now-continued removal
proceeding, Reyes Carbajal retained the services of attorney
Arnulfo Chapa, agreeing to pay Chapa $2500 for his assistance.
On March 15, 2005, Chapa represented Reyes Carbajal before
the immigration judge. The immigration judge denied a request
for an additional continuance and found Reyes Carbajal
removable. But the judge granted Reyes Carbajal voluntary
departure up to July 13, 2005, and told Chapa that if the visa
application were approved before departure, then Chapa could
move to reopen the proceedings and seek to adjust Reyes
Carbajal’s status.
On May 23, 2005 — well before Reyes Carbajal’s July 13,
2005, departure date — the government approved the visa
petition, and mailed notice of the approval to Reyes Carbajal’s
father and to his attorney, Chapa. On June 9, still before the
departure date, Reyes Carbajal’s visa became immediately
available for his use.

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Nevertheless, Chapa did not discuss with Reyes Carbajal the
approved visa petition or the possibility of reopening the
removal proceedings. Instead, according to Reyes Carbajal,
Chapa had told him that there was no need to reopen the
proceedings, as the immigration judge had suggested; once Reyes
Carbajal returned to Honduras, he simply could go to the United
States embassy in that country and apply for an immigrant visa.
That guidance was incorrect: Under the “10-year bar” of 8
U.S.C. § 1182(a)(9)(B)(i)(II), aliens like Reyes Carbajal may
not return to the United States for 10 years after a voluntary
departure. But Reyes Carbajal, on the advice of his attorney,
departed the United States on July 11, 2005, without moving to
reopen his proceedings to take account of the visa now available
to him.
In January 2006, Chapa followed through on his advice to
Reyes Carbajal, filing paperwork at the United States consulate
in Honduras seeking an immigrant visa for Reyes Carbajal. The
consulate denied the visa because Reyes Carbajal was
inadmissible under the 10-year bar. Chapa then sought an
exemption from the 10-year bar for Reyes Carbajal, filing a Form
I-601 under 8 U.S.C. § 1182(a)(9)(B)(v) and seeking a waiver of
inadmissibility on the basis of extreme hardship to Reyes
Carbajal’s father.

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Reyes Carbajal did not wait for the consulate to act on
this waiver request. Instead, in May 2007, he reentered the
United States without authorization. That unlawful reentry
triggered a new bar to admissibility. Under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I)’s “unlawful-entry bar,” an alien who has
been unlawfully present in the United States for more than a
year becomes ineligible for admissibility if he subsequently
enters the country illegally. Under that provision, Reyes
Carbajal became inadmissible when he returned to the United
States in 2007. In 2009, his I-601 waiver request was denied.
B.
In 2011, the government placed Reyes Carbajal in removal
proceedings for a second time. With new counsel representing
him, Reyes Carbajal conceded that he was removable but announced
that he would pursue adjustment of status based on the visa
approved in 2005. The government argued that regardless of the
visa, Reyes Carbajal was ineligible for admission under both the
10-year bar and the unlawful-entry bar.
It is at that point in the proceedings that Reyes Carbajal
raised the ineffective assistance claim at issue here, relying
on Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), in which
the Board of Immigration Appeals (“BIA” or “Board”) set out the
circumstances under which ineffective assistance of counsel may
be grounds for reopening or reconsideration in removal

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proceedings. According to Reyes Carbajal, his inadmissibility
under the 10-year and unlawful-entry bars should be excused
because Chapa, his former attorney, rendered ineffective
assistance in connection with his 2005 removal proceedings.
Specifically, Reyes Carbajal alleged, Chapa failed to move to
reopen his proceedings when his visa became available, as
suggested by the immigration judge, and instead advised him —
incorrectly — that he could apply for an immigration visa in
Honduras after voluntarily departing the United States. As a
result, Reyes Carbajal contended, he left the country even after
a visa had become available to him, triggering the 10-year bar,
and then reentered unlawfully, bringing to bear the unlawful-
entry bar, as well.
On January 7, 2013, the immigration judge issued a decision
denying Reyes Carbajal’s application for adjustment of status
and ordering him removed to Honduras. Reyes Carbajal was
rendered inadmissible and thus ineligible for adjustment of
status, the immigration judge found, under both the 10-year and
unlawful-entry bars. And the immigration judge rejected Reyes
Carbajal’s ineffective assistance of counsel claim, calling into
question whether Reyes Carbajal had satisfied Lozada’s standards
for making out such a claim and holding that in any event, it
was Reyes Carbajal’s independent decision to unlawfully return
to the United States in 2007 and not any action by prior counsel

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that triggered the unlawful-entry bar and rendered Reyes
Carbajal inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I).
On appeal, the Board dismissed Reyes Carbajal’s appeal and
adopted and affirmed the immigration judge’s decision. Like the
immigration judge, the Board found that Reyes Carbajal’s
unlawful presence and unlawful reentry rendered him inadmissible
under 8 U.S.C. § 1182(a)(9)(B)(i)(II) (the 10-year bar) and
(C)(i)(I) (the unlawful-entry bar). Regarding ineffective
assistance of counsel, the Board concluded that Reyes Carbajal
could not make the requisite showing of ineffective assistance
under Lozada.
Reyes Carbajal timely petitioned this court for review. We
have jurisdiction under 8 U.S.C. § 1252.
II.
A.
“Where, as here, the BIA has adopted and supplemented the
IJ’s decision, we review both rulings.” Jian Tao Lin v. Holder,
611 F.3d 228, 235 (4th Cir. 2010). The agency’s determination
that an alien is inadmissible is “conclusive unless manifestly
contrary to law.” 8 U.S.C. § 1252(b)(4)(C). We review legal
questions de novo, and an immigration judge’s findings of fact
for substantial evidence. See Djadjou v. Holder, 662 F.3d 265,
273 (4th Cir. 2011).

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B.
Before this court as before the immigration judge and
Board, Reyes Carbajal argues that Chapa’s ineffective assistance
in connection with his 2005 removal proceedings should excuse
his inadmissibility under 8 U.S.C. § 1182(a)(9)(B)(i)(II) and
(C)(i)(I). According to Reyes Carbajal, the immigration judge
and BIA misapplied Lozada to his case, erroneously finding that
he had not met Lozada’s requirements for showing ineffective
assistance of counsel. And because Chapa’s performance was
indeed deficient under Lozada, Reyes Carbajal argues, he should
be permitted to apply now for adjustment of status as though he
never departed in 2005, triggering the 10-year bar, and thus
never unlawfully reentered in 2007, triggering the unlawful-
entry bar.
The Attorney General’s principal argument in response is
that because Reyes Carbajal is solely responsible for his
inadmissibility under the unlawful-entry bar, that bar cannot be
excused regardless of any alleged ineffective assistance of
counsel. As the Attorney General emphasizes, Reyes Carbajal
alone decided to return to the United States in 2007,
independent of counsel’s advice — and, indeed, at a time when
counsel had filed a request with the United States consulate in
Honduras to waive his inadmissibility. It was Reyes Carbajal’s
own election to disregard that pending request and reenter the

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United States unlawfully that triggered his inadmissibility
under 8 U.S.C. § 1182(a)(9)(C)(i)(I). And it follows, the
Attorney General contends, that Reyes Carbajal remains
inadmissible under that unlawful-entry bar, whether or not
counsel’s alleged ineffectiveness might have caused him to
depart voluntarily in 2005 and become inadmissible under the
separate 10-year bar.
We agree with the Attorney General. We may put to one side
whether Chapa’s performance in connection with the 2005 removal
proceedings constituted ineffective assistance of counsel under
Lozada, causing Reyes Carbajal’s voluntary departure and
resulting inadmissibility under 8 U.S.C.
§ 1182(a)(9)(B)(i)(II)’s 10-year bar. Whatever the alleged
deficiencies in Chapa’s 2005 performance, it was Reyes
Carbajal’s decision — and his alone — to reenter the United
States unlawfully in 2007, and it was that decision — and that
decision alone — that triggered 8 U.S.C. § 1182(a)(9)(C)(i)(I)’s
unlawful-entry bar. Nothing that happened in 2005, and nothing
that Chapa said or did, caused Reyes Carbajal in 2007 to
disregard the waiver application then pending at the consulate
and the lawful procedure for reentering the United States.
Because 8 U.S.C. § 1182(a)(9)(C)(i)(I) is an independent bar to
admissibility, and because its application to Reyes Carbajal is

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unrelated to any ineffective assistance he may have received,
Reyes Carbajal is not entitled to the relief he seeks.
In light of that determination — the same one reached by
the immigration judge and adopted by the BIA — we need not reach
the merits of Reyes Carbajal’s ineffective assistance claim
under Lozada.* Reyes Carbajal is inadmissible for reasons
independent of any ineffective assistance he may have received
from counsel, and that is enough to dispose of this case.
PETITION FOR REVIEW DENIED
* Nor need we revisit whether, apart from the administrative
remedy for ineffective assistance of counsel recognized in
Lozada, the Fifth Amendment’s Due Process Clause provides an
independent basis for ineffective assistance of counsel claims
in removal proceedings. See Afanwi v. Mukasey, 526 F.3d 788,
797–99 (4th Cir. 2008) (recognizing that “a number of circuits
have held that counsel’s performance in a removal proceeding can
be so deficient that it deprives the alien of his due process
right to a fair hearing,” but holding that retained counsel’s
ineffectiveness in a removal proceeding does not give rise to a
constitutional claim), vacated on other grounds, 130 S. Ct. 350
(2009).

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