Correa-Rivera v. Holder Jr., No. 08-72258 (9th Cir. 2013)
Annotate this CasePetitioner sought review of the BIA's affirmation of the IJ's conclusion that petitioner's application for cancellation of removal was abandoned after petitioner's counsel did not file the application on time. The BIA found that petitioner had not complied with one of the procedural requirements announced in Matter of Lozado. The court read the BIA's decision as denying petitioner's motion to reopen, over which the court had jurisdiction. The court held that the BIA abused its discretion in applying Lozado where the record was undisputed that petitioner's counsel failed to file his application; petitioner lost his opportunity to apply for cancellation of removal; and therefore, petitioner was prejudiced by counsel's ineffective assistance. Accordingly, the court granted the petition for review, reversed, and remanded for the BIA to reopen petitioner's case and allow him to file his application for cancellation of removal.
Court Description: Immigration. The panel granted Marco Antonio Correa-Rivera’s petition for review of the Board of Immigration Appeals’ decision denying his request to apply for cancellation of removal and finding that he failed to meet the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), in his ineffective assistance of counsel claim. The panel held that the BIA erred in finding that Correa- Rivera failed to comply with the third Lozada requirement: “the motion should reflect whether a complaint has been filed.” The panel found that the third requirement does not call for a specific type of submission, document or action, and that Correa-Rivera’s motion complied where it included a copy of his complaint to the California Bar. The panel also held that Correa-Rivera’s lawyer’s failure to file his cancellation application prevented him from reasonably presenting his case, and that he was prejudiced by the lawyer’s ineffective assistance. The panel remanded for the BIA to reopen Correa-Rivera’s case and allow him to file his cancellation application.
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