Garcia-Castro v. Bondi

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KELVIN SAMUEL GARCIA-CASTRO; No. 25-938 DIANA MARBELY BLANDON- Agency Nos. CHAVARRIA; K. G. G.-B., A220-246-794 A220-246-795 Petitioners, A220-246-796 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 10, 2026** Pasadena, California Before: SCHROEDER, WARDLAW, and BADE, Circuit Judges. Kelvin Samuel Garcia-Castro, Diana Marbely Blandon-Chavarria, and their child—all natives and citizens of Nicaragua—petition for review of a decision by the Board of Immigration Appeals (BIA) denying their motion to rescind and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). reissue its decision. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. Petitioners sought reissuance of the decision because they failed to timely seek review in this court of the BIA’s dismissal of their appeal from the denial by an Immigration Judge (IJ) of their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The failure was due to their attorney’s admitted deficient performance in not diligently checking the Executive Office of Immigration Review Courts & Appeals System for updates after he allegedly did not receive personal electronic notice of the denial. In their appeal to the BIA, Petitioners’ attorney had failed to file a brief, but after two years, the BIA denied their appeal on the merits based on a statement attached to a prior defective notice of appeal. The BIA dealt with each of the points raised in Petitioners’ notice of appeal, reviewed the record, and affirmed the IJ’s denial of relief. The BIA later declined to reissue this decision because Petitioners did not file a bar complaint or explain why one was not filed as required by Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and they had not otherwise met Lozada’s policy goals. We deal with layers of deficient performance by Petitioners’ counsel, who continues to represent them before this court. Indeed, the petition for review refers 2 25-938 to the wrong petitioner and BIA decision in its conclusion. The repeated errors and omissions by counsel have resulted in years of delay. Generally, a petitioner must satisfy the three procedural requirements set forth in Lozada to establish ineffective assistance of counsel. See Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th Cir. 2022). We have explained that the primary policy goal of Lozada’s third requirement—to file, or satisfactorily explain the non-filing of, a complaint with the appropriate disciplinary authorities—is to protect against the collusive use by noncitizens and their attorneys of ineffective assistance of counsel claims to achieve delay. Lo v. Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003). The BIA did not abuse its discretion in invoking the requirements of Lozada and denying the motion to rescind and reissue its earlier decision. See Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). PETITION DENIED.1 1 The motion for a stay of removal is denied. See Docket Entry 4. 3 25-938