NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTINA GUADALUPE MARTINEZ DE No. 15-73503
ESTRADA,
Agency No. A094-195-429
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2019**
San Francisco, California
Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.
Cristina Guadalupe Martinez de Estrada, a native and citizen of El Salvador,
petitions for review of the Board of immigration Appeals’ order denying her
motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. §
1252. We review for abuse of discretion the denial of a motion to reopen.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We grant in part, deny in
part, and dismiss in part the petition for review, and remand to the BIA for further
proceedings consistent with this decision.
We grant the petition on Martinez de Estrada’s claim that the BIA abused its
discretion in denying Martinez de Estrada’s motion to reopen as untimely, and in
holding that she was not entitled to equitable tolling based on her claim that she
received ineffective assistance of counsel. First, a review of the record reflects
that, contrary to the BIA’s finding, Martinez de Estrada did in fact substantially
comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988). Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013). A fair
reading of Martinez de Estrada’s Exhibits B and C indicate that she (1) provided an
appropriate sworn declaration detailing the allegations against former counsel, (2)
notified him of her specific allegations of ineffective representation, and (3) lodged
a complaint with the California State Bar. Although her Exhibits B and C were not
attached in the record to the letter to counsel, the letter references “Enclosures (2)”.
We can only conclude that the “Enclosures (2)” were Exhibits B and C. Second,
the agency failed to provide any explanation in support of its determination that
petitioner was not prima facie eligible for an adjustment of status, and failed to
address Martinez de Estrada’s argument that she would be eligible for a waiver of
her convictions under 8 U.S.C. § 1182(h). See, e.g., Tadevosyan v. Holder, 743
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F.3d 1250, 1252-53 (BIA abuses its discretion when it fails to provide a reasoned
explanation for its actions). Moreover, the agency did not have the benefit of this
court’s recent decision in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), which
held that a Temporary Protected Status recipient is considered “inspected and
admitted” when determining the recipient’s eligibility for adjustment of status.
We deny the petition for review on Martinez de Estrada’s claims that the
BIA abused its discretion by holding that Martinez de Estrada failed to establish
ineffective assistance of counsel for her attorney’s failure to appeal denial of her
applications for asylum, NACARA relief, and TPS. See Correa-Rivera v. Holder,
706 F.3d 1128, 1133 (9th Cir. 2013) (to establish prejudice from ineffective
assistance of counsel, petitioner must show that the outcome may have been
different had counsel raised the argument on appeal).
We dismiss the petition for review in part because we lack jurisdiction to
consider the following unexhausted contentions: (1) that the immigration judge
failed to advise Martinez de Estrada of her apparently eligibility for cancellation of
removal; and (2) that Martinez de Estrada was prejudiced by prior counsel’s failure
to appeal the aggravated felony ruling and denial of asylum on the merits and to
argue that she had established good moral character for NACARA eligibility. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (court lacks jurisdiction to
consider legal claims not presented to the agency in alien’s proceedings).
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We reject as unsupported by the record Martinez de Estrada’s contention
that the immigration judge failed to advise her of her apparent eligibility for
adjustment of status.
On remand the agency is directed to consider Martinez de Estrada’s motion
to reopen in light of this court’s decision in Ramirez v. Brown, infra.
PETITION GRANTED in part, DENIED in part; DISMISSED in part;
REMANDED. Each party shall bear its own costs.
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