PETITION FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS
Raymond Sánchez Maceira on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Nicole N. Murley, Trial Attorney, on brief for respondent.
Before Torruella, Selya and Thompson, Circuit Judges.
SELYA, Circuit Judge.
Immigration cases - like old soldiers - seem never to die. They may fade away for a spell, but they often return in slightly altered postures. So it is here.
The petitioner, José García, is a native and citizen of the Dominican Republic. He seeks judicial review of rulings rejecting serial attempts to revisit a final order of removal entered in 2009. Though creative, his arguments are unavailing and, in the end, we dismiss his petition in part and deny it in part.
We briefly rehearse the essential facts and travel of the case. By virtue of his 1996 marriage to a United States citizen, the petitioner became a conditional lawful permanent resident. See 8 U.S.C. § 1186a(a)(1). In 1998, the couple filed an I-751 joint petition to remove the conditions of the petitioner's residency. See id. § 1186a(c)(3). United States Citizenship and Immigration Services (USCIS) denied the petition, citing marriage fraud. See id. § 1186a(b)(1). After numerous procedural detours, the petitioner's conditional permanent residency status was terminated, and federal authorities instituted removal proceedings against him. See id. §§ 1227(a)(1)(D)(i), 1229(a).
On May 20, 2009, an Immigration Judge (IJ) entered an order of removal in absentia after the petitioner failed to appear for a scheduled hearing. See id. § 1229a(b)(5). Through his attorney, the petitioner promptly moved to reopen the proceeding, claiming that his arrival at the hearing had been delayed by traffic conditions. The IJ denied this motion, concluding that there had been no showing of "exceptional circumstances beyond [the] alien's control." See id. § 1229a(b)(5)(C)(i).
The petitioner appealed the denial of his motion to reopen to the Board of Immigration Appeals (BIA). In short order, however, the petitioner executed an about-face: he withdrew his appeal and requested reinstatement of the removal order, professing a desire to return to his homeland. The BIA obliged and, on July 10, 2009, the petitioner was removed and remitted to the Dominican Republic.
Sometime in December of 2012, the petitioner reentered the United States illegally. He was soon apprehended and charged criminally with unlawful reentry. See 8 U.S.C. § 1326(a).
On August 28, 2013, the petitioner again moved to reopen, alleging that he had received ineffective assistance of counsel during the 2009 removal proceedings. The petitioner initially contended that his counsel had never filed a motion to reopen. When it came to light, though, that the petitioner's counsel had indeed filed such a motion eight days after the IJ's in absentia removal order, the petitioner switched gears and argued that the filed motion to reopen was "terribly flawed" as it had not included a sworn statement from the petitioner himself.
The IJ denied this second motion to reopen on multiple grounds. Two of those grounds are relevant here. First, the IJ ruled that the motion was time and number barred. See 8 C.F.R. § 1003.23(b)(1). Second, the IJ ruled that the petitioner's ineffective assistance of counsel claim was faulty because it did not comply with any of the requirements enumerated in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). On March 12, 2015, the BIA affirmed the denial of the second motion to reopen, adding that the petitioner had not demonstrated prima facie eligibility for any conservable relief from removal.
The petitioner moved for reconsideration of the BIA's decision. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). On May 15, 2015, the BIA denied reconsideration. This petition for judicial review ...