Reyna Elizabeth Cedillos De Garay; Jairo Alexander Garay Cedillos v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNA ELIZABETH CEDILLOS DE
GARAY; JAIRO ALEXANDER GARAY
CEDILLOS,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1999
Agency Nos.
A209-983-608
A209-983-609
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 5, 2023
Las Vegas, Nevada
Before: RAWLINSON and OWENS, Circuit Judges, and PREGERSON,**
District Judge.
Reyna Elizabeth Cedillos de Garay (Cedillos de Garay) and her minor son
Jairo Alexander Garay Cedillos, natives and citizens of El Salvador, petition for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
FILED
NOV 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review of a decision from the Board of Immigration Appeals (BIA) denying their
motion to reopen. “The BIA’s denial of a motion to reopen is reviewed for abuse
of discretion, and this court defers to the BIA’s exercise of discretion unless it
acted arbitrarily, irrationally, or contrary to law. . . .” Reyes-Corado v. Garland,
76 F.4th 1256, 1259 (9th Cir. 2023) (citation, alteration, and internal quotation
marks omitted). We have jurisdiction under 8 U.S.C. § 1252, and we grant the
petition.
Petitioners’ removal proceedings commenced in 2017. Petitioners conceded
removability, and applied for asylum, withholding of removal, and protection
under the Convention Against Torture. The Immigration Judge (IJ) denied the
applications for relief, and the BIA dismissed Petitioners’ appeal. After
Petitioners’ counsel failed to timely file a petition for review of the BIA’s decision,
Petitioners filed a motion to reopen based on ineffective assistance of counsel. The
BIA denied the motion on the grounds that Petitioners did not file a bar complaint
as required by Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The Board
relied on Matter of Melgar, 28 I. & N. Dec. 169, 170 (BIA 2020), reasoning that
“where ineffective assistance of counsel is alleged against an attorney who
continues to represent the same client, it is insufficient for counsel to simply accept
responsibility for the error without advising disciplinary authorities.”
We agree that generally a petitioner must satisfy the Lozada requirements to

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establish ineffective assistance of counsel. See Hernandez-Ortiz v. Garland, 32
F.4th 794, 801 (9th Cir. 2022). However, we have not required strict compliance
with the requirement to file a bar complaint absent evidence in the record of
collusion between a petitioner and counsel. See Lo v. Ashcroft, 341 F.3d 934, 938
(9th Cir. 2003). Because the record contains “no suggestion of collusion,” id., the
BIA abused its discretion in denying Petitioners’ motion to reopen by ruling
contrary to our precedent. See Reyes-Corado, 76 F.4th at 1259 (defining abuse of
discretion to include “act[ing] contrary to law”).
PETITION GRANTED.

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