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Ferreira v. Barr

United States Court of Appeals, First Circuit

September 18, 2019

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

          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.

          Before Torruella, Selya, and Kayatta, Circuit Judges.

          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, 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.

         The 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.

         We 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 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, 19 I. & N. Dec. 637 (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, 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. ...


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