Encarnacion-Severino v. Gonzales

MEMORANDUM ** Tomas Encarnacion-Severino (“Enearnacion-Severino”), a native and citizen of the Dominican Republic, petitions for review from the Board of Immigration Appeals’ (“BIA”) denial of his motion to reconsider the denial of his motion to reopen for purposes of rescinding his in absentia removal order because of ineffective assistance of counsel (“IAC”). For the following reasons, we deny the petition. Encarnacion-Severino argues that the BIA abused its discretion in denying his motion to reconsider because his second attorney provided ineffective assistance by filing an untimely appeal of his motion to reopen. The BIA recognized that the Ninth Circuit has not rigidly enforced the requirements for an IAC claim set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), but that the IAC claim failed because the petitioner did not submit an affidavit detailing the agreement between the petitioner and his counsel regarding representation, or show that he filed a complaint with the proper disciplinary authorities. The BIA did not abuse its discretion and we agree that the petitioner failed to offer sufficient documentary evidence demonstrating compliance, substantial or otherwise, with the Matter of Lozada requirements. The petitioner also contends that his original attorney was ineffective for not providing him with notice of the hearing date. This IAC claim was not raised before the BIA, therefore we do not have jurisdiction over this issue because the petitioner failed to exhaust his administrative remedies. 8 U.S.C. § 1252 (d)(1); see also Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000). PETITION DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.