Melchor Lucas, Jr. v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 11 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELCHOR SORIANO LUCAS, Jr., No. 11-71471

Petitioner, Agency No. A044-948-170

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 29, 2013**
Seattle, Washington

Before: McKEOWN and CLIFTON, Circuit Judges, and RAKOFF, Senior District
Judge.***

Melchor Soriano Lucas (“Lucas”), a native and citizen of the Philippines,

petitions for review of the decision by the Board of Immigration Appeals (“BIA”)

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
affirming the Immigration Judge’s (“IJ”) finding of removability and denial of

asylum, withholding of removal, and relief under the Convention Against Torture.

We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

Lucas was convicted pursuant to Revised Code of Washington § 9A.52.025

of two counts of residential burglary and sentenced to two concurrent 15-month

sentences of imprisonment. The Department of Homeland Security (“DHS”)

served Lucas with a Notice to Appear alleging that Lucas was removable because

he had been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii)

(any “alien who is convicted of an aggravated felony at any time after admission is

deportable”); 8 U.S.C. § 1101(a)(43)(G) (defining “aggravated felony” to include

“a theft ... or burglary offense for which the term of imprisonment [is] at least one

year”). The Immigration Judge (“IJ”) found that Lucas admitted the allegations

and conceded removability, and denied Lucas’s claim for relief.

On appeal, Lucas argues that 1) the IJ and BIA violated his rights to due

process; 2) substantial evidence does not support the conclusion that he committed

an aggravated felony; and 3) it was improper for the BIA to affirm the aggravated

felony finding based solely on Lucas’s admission.

Lucas affirmatively chose to have his hearing consolidated with his brothers’

hearings and to proceed telephonically. Even if there were any error with the

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telephonic, consolidated nature of the hearing or the advice of rights prior to the

hearing, Lucas did not raise a due process or procedural claim before the BIA and

cannot raise it for the first time here. See Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004) (noting that the exception to the administrative exhaustion

requirement for constitutional due process challenges is available only where the

due process claim involves “more than mere procedural error that an administrative

tribunal could remedy”).

The immigration court advised Lucas of his right to retain counsel and of the

availability of free legal services, but he chose to proceed pro se at his hearing and

to rely on the assistance of another inmate for his appeal to the BIA. Errors or

strategic mistakes in the application or appeal resulting from Lucas’s choice not to

retain an attorney do not state an ineffective assistance of counsel claim. See

Hernandez v. Mukasey, 524 F.3d 1014, 1020 (9th Cir. 2008) (holding that when

“an individual chooses not to retain an attorney, and instead knowingly relies on

assistance from individuals not authorized to practice law, such a voluntary choice

will not support a due process claim based on ineffective assistance of counsel”

(footnote omitted)).

Lucas failed to exhaust before the IJ or the BIA his challenges to his

categorization as an aggravated felon, and we thus lack jurisdiction to consider

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them. See 8 U.S.C. § 1252(d)(1); Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.

2010) (“We lack jurisdiction to review legal claims not presented in an alien’s

administrative proceedings before the BIA.”). Even if we were to consider the

claims, the record reflects that at the pleading stage Lucas admitted the allegations

in the Notice to Appear and conceded that he was removable, which is sufficient to

establish removability. Perez-Mejia v. Holder, 663 F.3d 403, 414 (9th Cir. 2011)

(holding that if at the “pleading stage an alien, individually or through counsel,

makes admissions of fact or concedes removability, and the IJ accepts them, no

further evidence concerning the issues of fact admitted or law conceded is

necessary”). In his brief to the BIA, Lucas also admitted that the charges were

aggravated felonies and that he was removable.

PETITION DENIED.