GONZALEZ PADILLA v. GARLAND (2021)

SUMMARY ORDER

Petitioner Osscar Gonzalez-Padilla, a native and citizen of Mexico, seeks review of a decision of the BIA affirming the decision of an Immigration Judge (“IJ”) deeming his application for cancellation of removal abandoned and ordering his removal to Mexico. In re Osscar Gonzalez-Padilla, No. A XXX XX8 087 (B.I.A. May 12, 2020), aff'g No. A XXX XX8 087 (Immig. Ct. Buffalo June 4, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

Gonzalez-Padilla argues that his application for cancellation of removal should be reinstated, and his order of removal vacated, because he received ineffective assistance of counsel in his agency proceedings. To prevail on an ineffective assistance claim, however, a noncitizen must satisfy the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988), which directs that the petitioner submit:

(1) an affidavit setting 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; (2) proof that the alien notified former counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.

Esposito v. INS, 987 F.2d 108, 110–11 (2d Cir. 1993). A noncitizen “who has failed to comply substantially with the Lozada requirements ․ forfeits h[is] ineffective assistance of counsel claim in this Court.” Jian Yun Zheng v. Dep't of Just., 409 F.3d 43, 47 (2d Cir. 2005).

Here, the BIA did not err in rejecting Gonzalez-Padilla's ineffective assistance claim because he himself admitted that he did not comply with any of the Lozada requirements. And while we may excuse strict compliance with the Lozada requirements where an ineffective assistance claim is “clear on the face of the record,” Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007), that is not the case here. To the contrary, the record before us does not provide any indication as to why Gonzalez-Padilla's application was not filed, much less demonstrate that counsel was at fault for that failure. Gonzalez-Padilla has thus forfeited his ineffective assistance claim by failing to substantially comply with the procedural requirements set forth in Lozada. See Jian Yun Zheng, 409 F.3d at 47.

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

FOOTNOTES

FOOTNOTE.   On June 26, 2020, Gonzalez-Padilla moved for an order staying his removal until this Court issued its final decision in his petition for review. Doc. No. 11. As the Court has now denied the petition for review, the June 26, 2020 motion for stay of removal is also denied as moot.