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Portillo-Castro v. Holder

United States Court of Appeals, Tenth Circuit

October 30, 2013

ERIC H. HOLDER, JR., United States Attorney General, Respondent.

Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


Paul J. Kelly, Jr. Circuit Judge

Wulfrano Portillo-Castro petitions for review of an order by the Board of Immigration Appeals (BIA) denying his motion to reconsider the BIA's decision affirming the denial of his request for cancellation of removal. Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we affirm.


Mr. Portillo-Castro, a native and citizen of Mexico, illegally entered this country in 1992. In June 2007, the Department of Homeland Security (DHS) initiated removal proceedings against him, alleging that he was present in the United States without being admitted or paroled. Mr. Portillo-Castro admitted the allegations and conceded removability. He then filed an application for cancellation of removal. An alien may be eligible for cancellation of removal if he meets certain requirements, including that he has not been convicted of a crime involving moral turpitude (CIMT). See 8 U.S.C. § 1229b(b)(1)(C). The government asserted that Mr. Portillo-Castro was ineligible for cancellation of removal because he had a 2003 conviction for domestic violence and he had failed to show that it was not a CIMT. The immigration judge (IJ) agreed with the government, denied the application, and ordered Mr. Portillo-Castro removed from the United States.

Mr. Portillo-Castro appealed the IJ's decision. The BIA agreed with the IJ's determination and dismissed the appeal. Mr. Portillo-Castro did not petition for review of the BIA's decision; instead, he hired new counsel and filed a motion to reconsider. The BIA denied the motion and this petition for review followed.


We review for abuse of discretion the BIA's denial of a motion to reconsider. See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).


In his motion to reconsider, Mr. Portillo-Castro argued that he was prejudiced in his proceedings before the IJ and BIA because he was represented by incompetent counsel, as evidenced by his first attorney's disbarment by the Oklahoma Supreme Court. He sought a remand to the IJ for a new hearing on his application for cancellation of removal with his new attorney. He did not offer any specific information about his first attorney's performance other than to assert that his application for cancellation of removal "on its face, is a tribute to [counsel's] incompetence." Admin. R. at 16. He also asserted that the requirements in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), for bringing claims of ineffective assistance of counsel, were "not applicable as previous counsel was disbarred while the underlying appeal was pending." Admin. R. at 16.

Under Lozada, "[a] motion based upon a claim of ineffective assistance of counsel should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts." 19 I. & N. Dec. at 639. Former counsel must be informed of the allegations and allowed the opportunity to respond before the allegations are presented to the BIA. Id. And, "the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not." Id.

In its order denying the motion to reconsider on this issue, the BIA explained that:

[Counsel's] disbarment alone does not cure [Mr. Portillo-Castro's] unexplained failure to follow any of the procedures for making a timely ineffective assistance of counsel claim as set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Evidence that [his] former counsel was disciplined does not prove that [he] was prejudiced by the actions of his counsel in this case.

Admin. R. at 3. The BIA further explained that Mr. Portillo-Castro's "claim of ineffective assistance of counsel lacks the necessary details we need to evaluate his argument, " and also noted that he had not offered any legal authority to support his position that his attorney's disbarment rendered the Lozada requirements inapplicable to his case. Id. The BIA further noted that the "Fifth Circuit has rejected a 'flexible' approach to the Lozada requirements argued for by [Mr. Portillo-Castro]." Id. The BIA declined to reconsider its decision or remand the case to the IJ, explaining that Mr. Portillo-Castro "ha[d] not presented any evidence to show that his prior counsel incompetently represented him, that his prior ...

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