FILED
NOT FOR PUBLICATION MAY 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE LUIS HERNANDEZ No. 07-74296
BOCANEGRA; NICOLASA SANTOS
DE HERNANDEZ, Agency Nos. A095-399-705
A095-399-706
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2011
San Francisco, California
Before: HUG and PAEZ, Circuit Judges, and WATSON,** District Judge.
Jose Luis Hernandez Bocanegra and Nicolasa Santos de Hernandez
(“Petitioners”), a married couple who are natives and citizens of Mexico, petition
for review of the Board of Immigration Appeals’ (“BIA”) denial of their “de facto”
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael H. Watson, District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
motion to reopen based on their claim of ineffective assistance of counsel. The
BIA denied the motion because Petitioners failed to comply with the requirements
set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Because the parties
are familiar with the factual and procedural history of this case, we do not recount
additional facts except as necessary to explain the decision.
We review for abuse of discretion the BIA’s denial of a motion to reopen
and review de novo claims of due process violations including claims of ineffective
assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). Jurisdiction is proper under 8 U.S.C. § 1252, and we deny the petition for
review.
The BIA has established several procedural requirements for aliens seeking
to reopen their removal proceedings based on a claim that they were denied due
process because of the ineffective assistance of their attorney. See Matter of
Lozada, 19 I. & N. Dec. at 639. Petitioners concede that they did not satisfy the
Lozada requirements, but argue that compliance is unnecessary because their
former counsel’s ineffectiveness is obvious on the face of the record. See
Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir. 2000) (holding that failure to
comply with the Lozada requirements is not fatal where the alleged ineffective
assistance is plain on the face of the administrative record).
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To demonstrate ineffective assistance of counsel, Petitioners must establish
(1) that their counsel failed to perform with sufficient competence, and (2) that
they were prejudiced by their counsel’s performance. See Mohammed, 400 F.3d at
793. We conclude that Petitioners have failed to make this showing.
1. Competence
In regard to the level of competence attorneys must demonstrate, this Court
has stated: “we do not require that [petitioner’s] representation be brilliant, but it
cannot serve to make [the] immigration hearing so fundamentally unfair that
[petitioner] was prevented from reasonably presenting his case.” Lin v. Ashcroft,
377 F.3d 1014, 1027 (9th Cir. 2004) (internal quotation marks omitted).
Petitioners argue that their counsel performed incompetently at the September 18,
2003 cancellation of removal hearing by failing to introduce medical evidence of
their U.S. citizen children’s health issues. The record, however, indicates that both
counsel and Petitioners attempted to obtain medical documentation from the
children’s doctors, though they were ultimately unsuccessful. Counsel also argued
repeatedly for additional time to procure medical evidence and noted that a
subpoena from the court might be necessary. Thus, we conclude that counsel’s
performance does not rise to the level of incompetence.
2. Prejudice
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A showing of prejudice can be made if counsel’s performance “was so
inadequate that it may have affected the outcome of the proceedings.” Iturribarria
v. INS, 321 F.3d 889, 899-900 (9th Cir. 2003) (internal quotation marks omitted).
Petitioners argue that had counsel introduced medical evidence of their children’s
conditions, the immigration judge would have granted them cancellation of
removal. The record, however, demonstrates that at the time of the hearing, neither
child suffered from a serious medical ailment. Jose Hernandez Bocanegra testified
at the hearing that a specialist had examined their oldest son just one day earlier
and had stated that the child “was fine” and to come back if the boy developed
additional problems with his testicles. He also noted that his youngest son had not
been diagnosed with asthma at his most recent medical appointment. Because the
testimony established that the children did not have any critical medical needs, we
conclude that additional medical evidence would not have affected the outcome of
the proceeding.
In sum, Petitioners have failed to demonstrate that their counsel’s
ineffectiveness is plain on the face of the record. Consequently, Petitioners were
required to comply with Matter of Lozada and the BIA did not abuse its discretion
by denying the “de facto” motion to reopen.
PETITION FOR REVIEW DENIED.
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