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Hernandez-Ortez v. Holder

United States Court of Appeals, Fifth Circuit

January 31, 2014

Douglas Estid HERNANDEZ-ORTEZ, Petitioner
v.
Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

Page 645

Douglas Estid Hernandez-Ortez, Washington, DC, pro se.

Briena Lorraine Strippoli, Esq., Trial Attorney, Tangerlia Cox, Robert Michael Stalzer, Esq., Trial Attorney, U.S. Department of Justice, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Douglas Estid Hernandez-Ortez petitions for review of the order of the Board of Immigration Appeals (BIA) dismissing his appeal from the final order of removal entered by the immigration judge (IJ). The BIA dismissed Hernandez-Ortez's appeal for lack of jurisdiction based upon its finding that Hernandez-Ortez waived his right to appeal, and it denied Hernandez-Ortez's claim of ineffective assistance of counsel based upon its determination that Hernandez-Ortez had not served his former

Page 646

counsel with his complaint and given his former counsel an opportunity to respond as required by Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).

I.

Hernandez-Ortez is a native-citizen of El Salvador who first entered the United States on an unknown date. Between 2002 and 2008 he was convicted of several crimes including domestic assault. In September 2011, the Department of Homeland Security initiated removal proceedings against Hernandez-Ortez by filing a Notice to Appear. Hernandez-Ortez, represented by counsel, conceded that he was removable for failing to be properly admitted or paroled into the country. In June 2012, a hearing was held to consider a request by Hernandez-Ortez to cancel removal. His counsel and an interpreter were physically present at that meeting, while Hernandez-Ortez participated via televideo. During the hearing his counsel informed the IJ that Hernandez-Ortez no longer sought cancellation of removal, but instead sought voluntary departure or withdrawal of his application for admission into the country. Hernandez-Ortez made no objection to his attorney's statements.

The IJ denied his request to withdraw his application for admission to the United States and ordered that he be removed from the country. The IJ asked counsel whether Hernandez-Ortez accepted the decision or whether he reserved the right to appeal. His counsel responded that " [b]ased on [his] client's wishes[,] [they would] accept." The IJ's order indicated that Hernandez-Ortez waived his right to appeal.

Hernandez-Ortez filed a pro se appeal to the BIA alleging that his counsel's ineffective assistance caused him to unwillingly waive appeal. He attached two documents to his brief: (1) an affidavit from him evidencing the circumstances of his counsel's alleged ineffectiveness, and (2) a copy of a complaint made to the Louisiana Attorney Disciplinary Board (the " LADB" ) concerning his former counsel.

The BIA rendered a decision dismissing Hernandez-Ortez's appeal for lack of jurisdiction. It determined from the record that he had waived his right to appeal through his counsel and that the IJ's order acknowledged this waiver. The BIA declined, however, to hear the merits of his claim of ineffective assistance of counsel because he had failed to meet one of the procedural requirements found in Lozada, 19 I. & N. Dec. at 639. Specifically, the BIA found that he had " neglected to inform his prior attorney of his accusations, so that the attorney may respond." Because he failed to meet this Lozada requirement, the BIA lacked the jurisdiction to hear his claim of ineffective assistance of counsel and dismissed his appeal. Hernandez-Ortez timely filed his Petition for Review of the BIA's order.

He argues that he complied with Lozada because he attached to his brief an affidavit in which he avers that he served his former counsel with the disciplinary complaint and a copy of his former counsel's response to the complaint. Citing precedent from the Ninth Circuit, he asserts that strict compliance with the Lozada requirements is unnecessary. He maintains that he cannot submit further proof that his former counsel was served with the complaint ...


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