Moises Huerta-Galvan v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [12-60304 Affirmed in Part; Dismissed in Part] Judge: TMR , Judge: EGJ , Judge: WED Mandate pull date is 08/12/2013 [12-60304]

Case: 12-60304

Document: 00512281897

Page: 1

Date Filed: 06/20/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-60304
Summary Calendar

June 20, 2013
Lyle W. Cayce
Clerk

MOISES HUERTA-GALVAN, also known as Moises Huerta,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 628 169

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Moises Huerta-Galvan, a native and citizen of Mexico, was ordered
removed from the United States in 2010. His appeal of the order of removal was
summarily dismissed in October 2011. The following month, Huerta-Galvan
filed a motion to reopen his immigration proceedings with the Board of
Immigration Appeals (BIA), and in March 2012, the BIA denied the motion to
reopen. In June 2012, Huerta-Galvan filed his second motion to reopen his
immigration proceedings with the BIA, and in September 2012, the BIA denied
*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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that motion. Huerta-Galvan has filed petitions for review of the BIA’s denial of
his initial motion to reopen and the denial of his second motion to reopen.
Huerta-Galvan first challenges the BIA’s denial of his initial motion to
reopen, arguing that the BIA erred in finding that he had not complied with the
procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1998).

Additionally, he complains that in denying his motion, the BIA

improperly announced and applied to his case a new or modified standard
regarding the requirements set forth in Lozada. The Government, in turn,
argues that this court lacks jurisdiction to review the denial of Huerta’s initial
motion to reopen. We pretermit any jurisdictional concerns because HuertaGalvan’s arguments are without merit. See Madriz-Alvarado v. Ashcroft, 383
F.3d 321, 327-28 (5th Cir. 2004).
We review the denial of a motion to reopen under “a highly deferential
abuse-of-discretion standard.” Rodriguez-Manzano v. Holder, 666 F.3d 948, 952
(5th Cir. 2012) (internal quotation marks and citation omitted). The court will
not find an abuse of discretion unless the BIA’s decision is “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.”
Id. (internal quotation marks and citation omitted).
Huerta-Galvan’s argument that he had only to comply substantially with
Lozada is unavailing. See Rodriguez-Manzano, 666 F.3d at 953. To support his
motion to reopen, Huerta-Galvan was required to provide (1) an affidavit from
the alien detailing the relationship with counsel; (2) evidence that counsel was
informed of the ineffectiveness allegations and allowed to respond; and
(3) evidence as to whether a complaint had been filed with the appropriate
disciplinary authorities. Lozada, 19 I. & N. Dec. at 639; see also Lara v.
Trominski, 216 F.3d 487, 496 (5th Cir. 2000). In addition to these three
procedural requirements, Huerta-Galvan also was required to demonstrate

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substantial

prejudice

resulting

from

counsel’s

deficient

performance.

Gutierrez-Morales v. Homan, 461 F.3d 605, 609 (5th Cir. 2006).
The record reflects that Huerta-Galvan failed to provide his affidavit when
he filed his initial motion to reopen the removal proceedings. Consequently, he
does not show that the BIA’s determination that he failed to comply with Lozada
was irrational or arbitrary. See Rodriguez-Manzano, 666 F.3d at 953; Lara, 216
F.3d at 496-99. Moreover, Huerta-Galvan has not presented any argument
regarding the BIA’s determination that he had not shown that he was
substantially prejudiced by counsel’s alleged ineffectiveness. He therefore has
abandoned any challenge to the denial of his motion to reopen on the basis that
he had not demonstrated substantial prejudice. See Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003) (citing Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987)). In view of the foregoing, we do not
reach Huerta-Galvan’s argument that the BIA abused its discretion in modifying
or expanding the standard set forth in Lozada.
In regard to the second motion to reopen, the BIA’s decision denying
reopening found that Huerta-Galvan’s motion was untimely and barred by the
numerical limitations set forth in 8 C.F.R. § 1003.2(c). Further, the BIA deemed
the motion to reopen to be withdrawn and denied the motion pursuant to
§ 1003.2(d), the “departure bar.” Huerta-Galvan now challenges the BIA’s
application of the departure bar in light of this court’s recent decision in GarciaCarias v. Holder, 697 F.3d 257 (5th Cir. 2012). However, because the BIA also
determined that Huerta-Galvan’s motion to reopen was time barred and
numerically barred, we need not address the BIA’s application of the departure
bar. See Ramos-Bonilla v. Mukaskey, 543 F.3d 216, 219-20 (5th Cir. 2008).
Accordingly, Huerta-Galvan’s petition for review of the order denying his
initial motion to reopen is DENIED, and his petition for review of the order
denying his second motion to reopen is DISMISSED.

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