PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
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.
Torruella, Selya, and Kayatta, Circuit Judges.
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.
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,
524 F.3d 302, 307 (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." Id.
petitioner's principal argument is that the Notice to
Appear (NTA) that initiated his removal proceedings was
defective under Pereira v.
Sessions, 138 S.Ct. 2105 (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.
recently rejected essentially the same argument in an opinion
issued on September 6, 2019. See Goncalves Pontes
v. Barr, ___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
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.
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, 19 I. & N. Dec. 637 (BIA
1988). We discern no error.
recognized Lozada "as a leading case with
respect to claims of ineffective assistance of counsel in the
immigration context." Pineda v.
Whitaker, 908 F.3d 836, 839 n.2 (1st Cir. 2018);
see, e.g., García
v. Lynch, 821 F.3d 178, 180-81 (1st Cir.
2016); Orehhova v. Gonzales, 417
F.3d 48, 51-52 (1st Cir. 2005); Saakian v.
INS, 252 F.3d 21, 25-27 (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, 908 F.3d at 839 n.2 (quoting
García, 821 F.3d at 180 n.2); see
Lozada, 19 I. & N. ...