Jose Reyes Carbajal v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying petition for review [999528931-2]. Originating case number: A077-709-094. Copies to all parties and the agency. [999898157]. [15-1150]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1150

JOSE ANGEL REYES CARBAJAL,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.

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

Argued:

May 10, 2016

Decided:

July 27, 2016

Before MOTZ, KING, and HARRIS, Circuit Judges.

Petition for review denied by unpublished per curiam opinion.

ARGUED: Maris J. Liss, Silver Spring, Maryland, for Petitioner.
Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
ON BRIEF:
Patricia B. Minikon, MINIKON
LAW, LLC, Greenbelt, Maryland, for Petitioner.
Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Shelley R.
Goad, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 2005, petitioner Jose Angel Reyes Carbajal, a native of
Honduras unlawfully present in the United States, was placed in
removal proceedings and voluntarily departed the country.

Two

years later, he unlawfully returned, triggering the “unlawfulentry bar,” which renders inadmissible aliens who attempt to
reenter the country after previous immigration violations.
8

U.S.C.

§ 1182(a)(9)(C)(i)(I).

When

the

government

See
again

sought to remove him, Reyes Carbajal argued that this bar to his
admissibility
proceeding
deficient

should

had

been

performance

be

excused

rendered
of

his

because

his

fundamentally

counsel.

original
unfair

Because

we

2005

by

the

find

that

Reyes Carbajal’s inadmissibility was caused by his independent
decision to return to the United States unlawfully and not by
any alleged defect in his counsel’s performance, we deny the
petition

without

reaching

the

merits

of

Reyes

Carbajal’s

the

United

States

ineffective assistance claim.

I.
A.
Reyes

Carbajal

originally

entered

2000, at the age of fifteen.

in

The following year, his father

filed an I-130 visa petition on his behalf.

If approved, the

visa would classify Reyes Carbajal as an unmarried child of a
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permanent

resident,

lawful

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allowing

him

to

remain

in

the

country.
In 2004, with the I-130 visa petition still pending, the
government placed Reyes Carbajal in removal proceedings.

Reyes

Carbajal explained that he intended to seek an adjustment of
status if a visa became available, and the immigration judge
granted a nine-month continuance to await action on the visa
petition.

In

proceeding,

connection

with

the

Reyes

Carbajal

retained

now-continued

the

services

of

removal
attorney

Arnulfo Chapa, agreeing to pay Chapa $2500 for his assistance.
On March 15, 2005, Chapa represented Reyes Carbajal before
the immigration judge.
for

an

additional

removable.

But

the

The immigration judge denied a request
continuance
judge

and

granted

found

Carbajal

Carbajal

Reyes

Reyes

voluntary

departure up to July 13, 2005, and told Chapa that if the visa
application
move

to

were

reopen

approved
the

before

departure,

proceedings

and

seek

then
to

Chapa

could

adjust

Reyes

Carbajal’s status.
On May 23, 2005 — well before Reyes Carbajal’s July 13,
2005,

departure

date

—

the

government

approved

the

visa

petition, and mailed notice of the approval to Reyes Carbajal’s
father and to his attorney, Chapa.
departure

date,

Reyes

Carbajal’s

available for his use.
3

On June 9, still before the
visa

became

immediately

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Nevertheless, Chapa did not discuss with Reyes Carbajal the
approved
removal
Chapa

visa

petition

proceedings.

had

told

him

or

the

possibility

Instead,
that

according

there

was

of

reopening

Reyes

need

no

to

to

the

Carbajal,

reopen

the

proceedings, as the immigration judge had suggested; once Reyes
Carbajal returned to Honduras, he simply could go to the United
States embassy in that country and apply for an immigrant visa.
That

guidance

U.S.C.

was

incorrect:

§ 1182(a)(9)(B)(i)(II),

Under
aliens

the

“10-year

like

Reyes

bar”

of

Carbajal

8

may

not return to the United States for 10 years after a voluntary
departure.

But Reyes Carbajal, on the advice of his attorney,

departed the United States on July 11, 2005, without moving to
reopen his proceedings to take account of the visa now available
to him.
In January 2006, Chapa followed through on his advice to
Reyes Carbajal, filing paperwork at the United States consulate
in Honduras seeking an immigrant visa for Reyes Carbajal.

The

consulate

was

denied

inadmissible

under

the
the

visa

because

10-year

bar.

Reyes
Chapa

Carbajal
then

sought

an

exemption from the 10-year bar for Reyes Carbajal, filing a Form
I-601 under 8 U.S.C. § 1182(a)(9)(B)(v) and seeking a waiver of
inadmissibility

on

the

basis

of

Carbajal’s father.

4

extreme

hardship

to

Reyes

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Reyes Carbajal did not wait for the consulate to act on
this waiver request.
United

States

triggered

a

Instead, in May 2007, he reentered the

without
new

bar

authorization.
to

That

admissibility.

unlawful
Under

reentry

8

U.S.C.

§ 1182(a)(9)(C)(i)(I)’s “unlawful-entry bar,” an alien who has
been unlawfully present in the United States for more than a
year

becomes

enters

the

Carbajal

ineligible
country

became

States in 2007.

for

admissibility

illegally.

inadmissible

Under

when

he

if

that

he

subsequently

provision,

returned

to

the

Reyes
United

In 2009, his I-601 waiver request was denied.
B.

In 2011, the government placed Reyes Carbajal in removal
proceedings for a second time.

With new counsel representing

him, Reyes Carbajal conceded that he was removable but announced
that he would pursue adjustment of status based on the visa
approved in 2005.

The government argued that regardless of the

visa, Reyes Carbajal was ineligible for admission under both the
10-year bar and the unlawful-entry bar.
It is at that point in the proceedings that Reyes Carbajal
raised the ineffective assistance claim at issue here, relying
on Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), in which
the Board of Immigration Appeals (“BIA” or “Board”) set out the
circumstances under which ineffective assistance of counsel may
be

grounds

for

reopening

or
5

reconsideration

in

removal

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proceedings.
under

the

because

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According to Reyes Carbajal, his inadmissibility

10-year

Chapa,

assistance

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in

and

his

unlawful-entry
former

connection

bars

attorney,

with

his

2005

should

be

excused

rendered

ineffective

removal

proceedings.

Specifically, Reyes Carbajal alleged, Chapa failed to move to
reopen

his

proceedings

when

his

visa

became

available,

as

suggested by the immigration judge, and instead advised him —
incorrectly — that he could apply for an immigration visa in
Honduras after voluntarily departing the United States.

As a

result, Reyes Carbajal contended, he left the country even after
a visa had become available to him, triggering the 10-year bar,
and then reentered unlawfully, bringing to bear the unlawfulentry bar, as well.
On January 7, 2013, the immigration judge issued a decision
denying Reyes Carbajal’s application for adjustment of status
and

ordering

rendered

him

removed

inadmissible

and

to

Honduras.

thus

ineligible

Reyes

Carbajal

was

for

adjustment

of

status, the immigration judge found, under both the 10-year and
unlawful-entry bars.

And the immigration judge rejected Reyes

Carbajal’s ineffective assistance of counsel claim, calling into
question whether Reyes Carbajal had satisfied Lozada’s standards
for making out such a claim and holding that in any event, it
was Reyes Carbajal’s independent decision to unlawfully return
to the United States in 2007 and not any action by prior counsel
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that

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triggered

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the

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unlawful-entry

bar

and

rendered

Reyes

Carbajal inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I).
On appeal, the Board dismissed Reyes Carbajal’s appeal and
adopted and affirmed the immigration judge’s decision.
immigration

judge,

the

Board

found

that

Reyes

Like the
Carbajal’s

unlawful presence and unlawful reentry rendered him inadmissible
under

8

(C)(i)(I)

U.S.C.
(the

§ 1182(a)(9)(B)(i)(II)
unlawful-entry

bar).

(the

10-year

Regarding

bar)

and

ineffective

assistance of counsel, the Board concluded that Reyes Carbajal
could not make the requisite showing of ineffective assistance
under Lozada.
Reyes Carbajal timely petitioned this court for review.

We

have jurisdiction under 8 U.S.C. § 1252.

II.
A.
“Where, as here, the BIA has adopted and supplemented the
IJ’s decision, we review both rulings.”
611 F.3d 228, 235 (4th Cir. 2010).

Jian Tao Lin v. Holder,

The agency’s determination

that an alien is inadmissible is “conclusive unless manifestly
contrary to law.”

8 U.S.C. § 1252(b)(4)(C).

We review legal

questions de novo, and an immigration judge’s findings of fact
for substantial evidence.

See Djadjou v. Holder, 662 F.3d 265,

273 (4th Cir. 2011).
7

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B.
Before

this

court

as

before

the

immigration

judge

and

Board, Reyes Carbajal argues that Chapa’s ineffective assistance
in connection with his 2005 removal proceedings should excuse
his

inadmissibility

(C)(i)(I).

under

8

U.S.C.

§ 1182(a)(9)(B)(i)(II)

and

According to Reyes Carbajal, the immigration judge

and BIA misapplied Lozada to his case, erroneously finding that
he had not met Lozada’s requirements for showing ineffective
assistance

of

counsel.

And

because

Chapa’s

performance

was

indeed deficient under Lozada, Reyes Carbajal argues, he should
be permitted to apply now for adjustment of status as though he
never departed in 2005, triggering the 10-year bar, and thus
never

unlawfully

reentered

in

2007,

triggering

the

unlawful-

entry bar.
The Attorney General’s principal argument in response is
that

because

Reyes

Carbajal

is

solely

responsible

for

his

inadmissibility under the unlawful-entry bar, that bar cannot be
excused

regardless

counsel.
alone

of

any

alleged

ineffective

assistance

of

As the Attorney General emphasizes, Reyes Carbajal

decided

to

return

to

the

United

States

in

2007,

independent of counsel’s advice — and, indeed, at a time when
counsel had filed a request with the United States consulate in
Honduras to waive his inadmissibility.

It was Reyes Carbajal’s

own election to disregard that pending request and reenter the
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United
under

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States
8

Attorney

unlawfully

U.S.C.

counsel’s

that

triggered

his

§ 1182(a)(9)(C)(i)(I).

General

inadmissible

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contends,

under

that

alleged

that

Reyes

unlawful-entry

ineffectiveness

And

it

follows,

Carbajal

bar,

might

inadmissibility

remains

whether

have

the

or

caused

him

not
to

depart voluntarily in 2005 and become inadmissible under the
separate 10-year bar.
We agree with the Attorney General.

We may put to one side

whether Chapa’s performance in connection with the 2005 removal
proceedings constituted ineffective assistance of counsel under
Lozada,

causing

resulting

Reyes

Carbajal’s

§ 1182(a)(9)(B)(i)(II)’s
deficiencies

in

10-year

Chapa’s

departure

under

inadmissibility

voluntary

8

bar.

2005

Whatever

performance,

it

and

U.S.C.
the

alleged

was

Reyes

Carbajal’s decision — and his alone — to reenter the United
States unlawfully in 2007, and it was that decision — and that
decision alone — that triggered 8 U.S.C. § 1182(a)(9)(C)(i)(I)’s
unlawful-entry bar.
that

Chapa

said

or

Nothing that happened in 2005, and nothing
did,

caused

Reyes

Carbajal

in

2007

to

disregard the waiver application then pending at the consulate
and

the

lawful

procedure

for

reentering

the

United

States.

Because 8 U.S.C. § 1182(a)(9)(C)(i)(I) is an independent bar to
admissibility, and because its application to

9

Reyes Carbajal is

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unrelated to any ineffective assistance he may have received,
Reyes Carbajal is not entitled to the relief he seeks.
In light of that determination — the same one reached by
the immigration judge and adopted by the BIA — we need not reach
the

merits

under

of

Lozada. *

Reyes

Carbajal’s

Reyes

Carbajal

ineffective
is

assistance

inadmissible

for

claim

reasons

independent of any ineffective assistance he may have received
from counsel, and that is enough to dispose of this case.

PETITION FOR REVIEW DENIED

*

Nor need we revisit whether, apart from the administrative
remedy for ineffective assistance of counsel recognized in
Lozada, the Fifth Amendment’s Due Process Clause provides an
independent basis for ineffective assistance of counsel claims
in removal proceedings.
See Afanwi v. Mukasey, 526 F.3d 788,
797–99 (4th Cir. 2008) (recognizing that “a number of circuits
have held that counsel’s performance in a removal proceeding can
be so deficient that it deprives the alien of his due process
right to a fair hearing,” but holding that retained counsel’s
ineffectiveness in a removal proceeding does not give rise to a
constitutional claim), vacated on other grounds, 130 S. Ct. 350
(2009).
10