2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2013

Efrain Pacheco-Mazetas v. Attorney General United

States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1519

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1519

___________

EFRAIN PACHECO-MAZETAS,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A201-110-666)

Immigration Judge: Honorable Walter Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 19, 2013

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: August 20, 2013)

___________

OPINION

___________

PER CURIAM

Efrain Pacheco-Mazetas petitions for review of a decision of the Board of 

Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.

Pacheco-Mazetas, a citizen of Peru, entered the United States in 2002 without 

inspection. In January 2011, he was charged as removable as an alien present in the 
2

United States without inspection. Represented by counsel, Pacheco-Mazetas applied only 

for voluntary departure. After a brief hearing, an Immigration Judge (IJ) found him 

removable and granted him voluntary departure. Appealing pro se, he argued that his 

former counsel was ineffective for failing to advise him of the availability of asylum and 

withholding of removal. Without giving any details, he asserted that he had a fear of 

returning to Peru and requested an opportunity to present a claim. The BIA dismissed the 

appeal and denied the request to remand the matter. It concluded that Pacheco-Mazetas

failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 

637, 639 (BIA 1988), to support his claim of ineffective assistance of counsel. The BIA 

rejected his arguments that the IJ failed to properly advise him of all apparent relief from 

removal. Pacheco-Mazetas filed a petition for review. We have jurisdiction under 8 

U.S.C. § 1252.

In his brief, Pacheco-Mazetas argues that he did not knowingly waive his right to 

apply for asylum, withholding of removal, or relief under the Convention Against Torture 

(CAT). He asserts that the BIA gave minimal attention to his argument that he was not 

advised of his right to apply for asylum. Under 8 C.F.R. § 1240.11(c)(1), the IJ is 

required to inform an alien of his right to apply for asylum or withholding of removal 

“[i]f the alien expresses fear of persecution or harm upon return to any of the countries to 

which the alien might be removed.” Before the IJ, Pacheco-Mazetas expressed no fear of 

returning to Peru. Thus, the IJ was not required to inform him of his right to apply for 

asylum and withholding of removal. 
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Pacheco-Mazetas contends that his attorney was ineffective because he did not 

explain to him that he was waiving his right to apply for relief. The BIA determined that 

Pacheco-Mazetas had failed to comply with the requirements of Lozada and denied his 

request to remand the matter to allow him to apply for asylum. A motion to remand is 

the functional equivalent of a motion to reopen. Korytnyuk v. Ashcroft, 396 F.3d 272, 

282 (3d Cir. 2005). We review the denial of a motion to reopen for an abuse of 

discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) 

Pacheco-Mazetas has not shown that he has complied with any of the requirements 

of Lozada. He did not set forth in detail the agreement he entered into with the attorney, 

inform prior counsel of his allegations and give him an opportunity to respond, and file a 

complaint with the appropriate disciplinary authorities or explain why a complaint was 

not filed. Lozada, 19 I. & N. Dec. at 639. Pacheco-Mazetas asserts that a proper 

complaint has been made against his former counsel. However, he does not provide a 

copy of that complaint or give any details as to when or with whom it was filed. 

Moreover, he did not mention any such complaint in his brief before the BIA. He 

appears to concede that the complaint was not made until after the BIA referred to the

lack of complaint. Brief at 6 (“Once he realized he needed to make a complaint, he 

immediately made such a complaint.”). The BIA did not abuse its discretion in denying 

Pacheco-Mazetas’s request to remand the matter.

Moreover, we note that Pacheco-Mazetas has not shown prejudice from any 

ineffective assistance of counsel. He has yet to provide any details of his proposed 
4

asylum or withholding of removal claims.

For the above reasons, we will deny the petition for review.