CAICEDO v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Ivonne Maribel Bajana Caicedo (“Caicedo”) seeks review of an October 31, 2016 decision of the Board of Immigration Appeals (“BIA”) denying her motion to remand based on alleged ineffective assistance of counsel and affirming an immigration judge’s decision pretermitting her application for cancellation of removal. In re Ivonne Maribel Bajana Caicedo, No. A 047 389 247 (B.I.A. Oct. 31, 2016), aff’g No. A 047 389 247 (Immig. Ct. N.Y. City Oct. 15, 2015). Caicedo argues that the BIA erred when it ruled that she failed to follow the procedural requirements of Matter of Lozada, related to claims of ineffective assistance of counsel. 19 I&N Dec. 637 (BIA 1988). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review the BIA’s factual findings for substantial evidence and its legal conclusions de novo. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Lozada mandates that a claim for ineffective assistance of counsel must be supported by 1) an affidavit detailing the agreement between the applicant and former counsel; 2) evidence that notice was given to former counsel of the allegations, with adequate time for response; and 3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the applicant has filed a complaint regarding counsel’s conduct with the appropriate disciplinary authorities or, if not, a statement why the applicant has not done so. Garcia-Martinez v. Dep’t of Homeland Sec., 448 F.3d 511, 512 n.1 (2d Cir. 2006).

The BIA ruled that Caicedo failed to comply with the procedures set forth in Lozada, finding, among other things, that she did not “set forth in detail the agreement with former counsel concerning what action would be taken and what counsel did or did not represent in this regard,” and failed to submit sufficient evidence that she notified her prior counsel. Upon review of the record, we agree that Caicedo failed to provide sufficient information regarding the agreement with former counsel regarding what action would be taken. Since we conclude that Caicedo failed to comply with the first Lozada requirement, we need not reach the other elements of her claim.

CONCLUSION

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