United States Court of Appeals For the First Circuit

No. 18-2211

ROMILSON BATISTA FERREIRA,

Petitioner,

v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Selya, and Kayatta, Circuit Judges.

Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau PC were on brief, for petitioner. Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Brianne W. Cohen, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

September 18, 2019 SELYA, Circuit Judge. The petitioner, Romilson Batista

Ferreira, is a Brazilian national. He seeks judicial review of a

decision of the Board of Immigration Appeals (BIA) dismissing his

appeal of the immigration court's order of removal and its

concomitant denial of his application for cancellation of removal.

Finding no merit in the petitioner's asseverational array, we deny

the petition.

Our standard of review in this realm is familiar. We

will uphold findings of fact in removal proceedings "as long as

they are supported by substantial evidence on the record as a

whole." Pulisir v. Mukasey,

(1st Cir. 2008).

Legal conclusions, though, engender de novo review, "with some

deference to the agency's reasonable interpretation of statutes

and regulations that fall within its purview."

The petitioner's principal argument is that the Notice

to Appear (NTA) that initiated his removal proceedings was

defective under Pereira v. Sessions,

(2018),

because it omitted the date and time of his initial removal

hearing. As a result of this defect, his thesis runs, the NTA was

insufficient to vest the immigration court with jurisdiction over

his removal proceedings and, thus, the removal order issued against

him is without effect.

We recently rejected essentially the same argument in an

opinion issued on September 6, 2019. See Goncalves Pontes v. Barr,

- 2 - ___ F.3d ___ (1st Cir. 2019) [No. 19-1053]. No useful purpose

would be served by repastinating soil already well-plowed. For

substantially the same reasons as were explicated in Goncalves

Pontes, we hold that the petitioner's NTA was effective to commence

removal proceedings in the immigration court, notwithstanding the

absence of a date and time for his removal hearing. Consequently,

the petitioner's jurisdictional argument fails.

One loose end remains. In addition to challenging the

immigration court's jurisdiction, the petitioner also challenges

the BIA's rejection of his claim for relief from removal premised

upon the allegedly ineffective assistance afforded by his counsel.

This challenge need not detain us.

In his appeal to the BIA, the petitioner complained (for

the first time) that his prior attorney rendered ineffective

assistance by advising him not to testify before the immigration

court and by failing to advise him to pursue lawful permanent

residency through his U.S. citizen wife. The BIA gave short shrift

to these plaints, noting that the petitioner had not complied with

the procedural requirements set forth in Matter of Lozada,

(BIA 1988). We discern no error.

We have recognized Lozada "as a leading case with respect

to claims of ineffective assistance of counsel in the immigration

context." Pineda v. Whitaker,

, 839 n.2 (1st Cir.

2018); see, e.g., García v. Lynch,

(1st Cir.

- 3 - 2016); Orehhova v. Gonzales,

(1st Cir. 2005);

Saakian v. INS,

(1st Cir. 2001). Under Lozada,

a claim of ineffective assistance of counsel must be supported by:

(1) an affidavit explaining the petitioner's agreement with counsel regarding legal representation; (2) evidence that counsel has been informed of the allegations of ineffective assistance and has had an opportunity to respond; and (3) if it is asserted that counsel's handling of the case involved a violation of ethical or legal responsibilities, a complaint against the attorney filed with disciplinary authorities or, in the alternative, an explanation for why such a complaint has not been filed.

Pineda,

n.2 (quoting García,

n.2);

see Lozada,

.

Here, the petitioner admits that he did not comply with

the Lozada requirements. He nonetheless assails the BIA's

disposition of his ineffective assistance of counsel claim on two

grounds. We briefly discuss each ground.

To begin, the petitioner seizes upon the BIA's reference

in Lozada to a "motion to reopen or reconsider,"

, and argues that the Lozada requirements do not apply to

ineffective assistance claims broached for the first time on

"direct appeal." This is whistling past the graveyard: as the

BIA implicitly recognized, the petitioner's claim was (for present

purposes) analogous to a motion to reopen the proceedings before

the immigration court. Cf. Falae v. Gonzáles,

, 14

- 4 - (1st Cir. 2005) (explaining that the BIA properly treated motion

to remand as motion to reopen because the petitioner sought to

return to immigration court to pursue adjustment of status). Here,

moreover, the petitioner provides no plausible support for his

self-serving assertion that Lozada should be limited to motions to

reopen or reconsider.

If an unsuccessful petitioner wishes to bring forward an

ineffective assistance claim on direct review rather than on a

motion to reopen, there is no reason to allow him to forgo

providing the BIA with the information that it needs to assess

such a claim. The BIA has applied Lozada broadly to ineffective

assistance claims of all stripes, including claims raised for the

first time before the BIA. See, e.g., Pineda,

.

This is sound practice: the Lozada requirements are designed to

give the BIA sufficient information to inform its decision without

resorting to an evidentiary hearing. See Saakian,

.

Such a design operates with equal efficacy in any procedural

posture in which an ineffective assistance of counsel claim may

arise. We thus hold that the Lozada requirements apply four-

square to the petitioner's ineffective assistance claim and that

the BIA did not err in evaluating the petitioner's claim through

the lens of those requirements.1

1 We note in passing that the petitioner's reliance on the standard for ineffective assistance of counsel claims limned in

- 5 - The remaining ground on which the petitioner relies is

similarly unpersuasive. Citing BIA decisions in removal

proceedings commenced outside the First Circuit, he contends that

the allegedly ineffective assistance of his counsel was so

egregious as to warrant a "plain on its face" exception to the

Lozada requirements. This circuit, though, has disavowed any such

blanket exception "in favor of a case-by-case assessment of whether

the BIA's application of Lozada was arbitrary." García,

. Following this approach, we have consistently upheld BIA

denials of ineffective assistance of counsel claims where, as here,

aliens have simply ignored the Lozada requirements without good

cause. See, e.g.,

at 181 n.4.

The Lozada requirements are not perfect, but they create

a useful framework for assessing the viability of most ineffective

assistance of counsel claims. Given the petitioner's utter failure

to so much as attempt to comply with any of the Lozada requirements

either before the BIA or this court, there is no principled way to

say that the BIA's rejection of his ineffective assistance claim

Strickland v. Washington,

(1984), is misplaced. The Strickland standard derives from the Sixth Amendment and governs ineffective assistance claims in criminal cases. See

at 684- 85. Aliens are not entitled to the protections of the Sixth Amendment in removal proceedings. See Conteh v. Gonzales,

(1st Cir. 2006). Instead, claims of ineffective assistance in removal proceedings implicate the Due Process Clause of the Fifth Amendment. See Guerrero-Santana v. Gonzales,

(1st Cir. 2007).

- 6 - was arbitrary. This is particularly true in light of the

petitioner's failure to offer anything resembling a plausible

explanation for his failure to satisfy the Lozada requirements.

We need go no further. For the reasons elucidated above,

the petition for judicial review is

Denied.

- 7 -