19

- 1841 Martinez Soriano v. Garland BIA Thompson , IJ A 073 548 354 

## UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**


# SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  = **S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COU**  **RT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A PARTY CITING TO A SUMMARY**  **ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**

**At a stated term of the United States Cou rt of Appeals for**  

### 1 **the Second Circuit, held at the Thurgood Marshall United States**  

### 2 **Courthouse, 40 Foley Square, in the City of New York, on the**  

### 3 **20 th**  **da y of**  **May , two thousand**  **twenty**
**- one** 
**.** 

### 4 5 **PRESENT:** 

### 6 **JOHN M. WALKER, JR. ,**  

### 7 **MICHAEL H. PARK ,**  

### 8 **WILLIAM J. NARDINI**  **,** 

### 9 **Circuit Judges.** 

### 10

**_____________________________________** 

### 11 12 **ALBERTO MARTINEZ SORIANO ,**  

### 13 14 **Petitioner ,**  

### 15 16

**v. 19** 

**- 1841**  

### 17 18 **MERRICK B. GARLAND , UNITED STATES**  

### 19 **ATTORNEY GENERAL ,**  

### 20 21 **Respondent**

**.** 

### 22

**_____________________________________** 

### 23 24 **FOR PETITIONER :**  Alberto Martinez Soriano , pro se , 

### 25 Newburgh , NY

. 

### 26 27 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 

### 28 Attorney General; Shelley R. Goad , 

### 29 Assistant Director ; Elizabeth Chapman , 

### 30 Trial Attorney, Office of Immigration 

### 31 Litigation, United States Department 

### 32 of Justice, Washington, DC. 

### 33

### 2 UPON DUE CONSIDERATION of this petition for review of a 

### 1

decision of the Board of Immigration Appeals (“BIA”), it is hereby 

### 2

ORDERED, ADJUDGED, AND DECREED that the petitio n for review is 

### 3

DENIED

. 

### 4

Petitioner Alberto Martinez Soriano , a native and citizen of 

### 5

Mexico , seeks review of a May 23 , 2019 decision of the BIA , 

### 6
dismissing as untimely his appeal of an October 26, 2018 order of 

### 7
an Immigration Judge (“IJ”) pretermitting his application for 

### 8

cancellation of removal and ordering him removed

. In re Alberto 

### 9

Martinez Soriano , No. A 073 548 354 (B.I.A. May 23 , 2019 ), aff’g 

### 10

No. A 073 548 354 (Immig. Ct. N.Y. C. Oct. 26, 2018 ). We assume the 

### 11
parties’ familiarity with the underlying facts and procedural 

### 12
history. 

### 13

Under the circumstances, w e review only the BIA’s decision 

### 14
dismissing as untimely Martinez Soriano’s appeal of the IJ’s 

### 15

decision

. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 

### 16
2005). The applicable standards of review are well established. 

### 17
See Khan v. U.S. Dep’t of Justice , 494 F.3d 255, 259 (2d Cir. 2007) 

### 18
(reviewing dismissal of appeal as untimely for ab use of 

### 19

discretion); Manzur v. U.S. Dep’t of Homeland Sec. , 494 F.3d 281, 

### 20

288

– 90 (2d Cir. 2007) (reviewing factual findings for substantial 

### 21
evidence and questions of law de novo ); Nwozuzu v. Holder , 726 

### 22

### 3 F.3d 323, 326

– 27 (2d Cir. 2013) (reviewing agency stat utory 

### 1
interpretation under Chevron U.S.A., Inc. v. Natural Res. Def. 

### 2

Council, Inc. , 467 U.S. 837, 842

– 44 (1984)). 

### 3
It is undisputed that Martinez Soriano’s February 2019 appeal 

### 4
to the BIA was untimely because it was filed more than 30 days 

### 5

after the IJ’s October 2018 order of removal. See 8 C.F.R. 

### 6

§ 1003.38(b) (“The Notice of Appeal

. . . shall be filed directly 

### 7

with the Board

. . . within 30 calendar days after 

### 8

the

. . . mailing of an Immigration Judge’s written dec ision.”); 

### 9

see also Attipoe v. Barr , 945 F.3d 76, 79 (2d Cir. 2019). “[W]hile 

### 10

under normal circumstances the BIA cannot hear late

- filed 

### 11
appeals,” Zhong Guang Sun v. U.S. Dep’t of Justice , 421 F.3d 105, 

### 12

108 (2d Cir. 2005), it may equitably toll the filing p eriod based 

### 13

on ineffective assistance of counsel, see Attipoe , 945 F.3d at 82

– 

### 14

83

. The BIA did not err in declining to excuse the untimely filing 

### 15

based on Martinez Soriano’s ineffective assistance of counsel 

### 16

claim. 

### 17
To prevail on an ineffective assistance claim, an alien must 

### 18
substantially comply with the procedures laid out in Matter of 

### 19

Lozada , 19 I&N Dec. 637 (B

. I

. A

. 1988) , which requires (1) an 

### 20
affidavit detailing what actions former counsel agreed to take, 

### 21

(2) pro of that counsel was notified of the allegations and allowed 

### 22

### 4 to respond , and (3) a statement regarding whether a complaint was 

### 1

filed with a disciplinary authority. See id. at 639; see also 

### 2
Jian Yun Zheng v. U.S. Dep't of Justice , 409 F.3d 43, 46

– 47 (2d 

### 3

Cir . 2005). Martinez Soriano complied with the first requirement 

### 4
by submitt ing an affidavit laying out his agreement with counsel 

### 5

as to at least one basis for his claim (counsel’s failure to oppose 

### 6
pretermission) and the third requirement by submitting complaints 

### 7
he filed, but he failed to comply with the second requirement by 

### 8

show ing that he informed counsel of the allegations and prov ided 

### 9
an opportunity for response

. T he second requirement protects 

### 10
against “the potential for abuse

. . . apparent where no mechanism 

### 11
exists for allowing former counsel, whose integrity or competence 

### 12
is being impugned, to present his version of events if h e so 

### 13
chooses, thereby discouraging baseless allegations.” Lozada , 19 

### 14

I&N Dec. at 639. Although we do not require “slavish adherence 

### 15
to the requirements,” we have excused the m only where a “claim of 

### 16

ineffective assistance [ wa s] clear on the face of the re cord,” 

### 17

such as when counsel ha d been disbarred for similar claims of 

### 18

ineffectiveness or admit ted fault. Yi Long Yang v. Gonzales , 478 

### 19

F.3d 133, 14 2

– 4 3 (2d Cir. 2007)

. 

### 20

Because Martinez Soriano failed to comply with the Lozada 

### 21
requirements , h e forfeited his ineffective assistance of counsel 

### 22

### 5 claim, see Jian Yun Zheng , 409 F.3d at 47, and the BIA did not err 

### 1
in declining to excuse the untimely filing of his appeal, see Khan , 

### 2

494 F.3d at 259

. Accordingly, we do not reach the BIA’s 

### 3
alternative dispositive determination that Martinez Soriano failed 

### 4

to establish p rejudice. S ee INS v. Bagamasbad , 429 U.S. 24, 25 

### 5
(1976) (“As a general rule courts and agencies are not required to 

### 6
make findings on issues the decision o f which is unnecessary to 

### 7
the results they reach.”) ; Rabiu v. INS , 41 F.3d 879, 882 (2d Cir. 

### 8

1994) (requiring showing of prejudice to state ineffective 

### 9

assistance claim). 

### 10

There is no merit to Martinez Soriano’s argument that the BIA 

### 11

should have found hi s notice to appear defective under Pereira v. 

### 12

Sessions , 138 S. Ct. 2105 (2018) , because the notice did not 

### 13
include a hearing date or time . In Pereira , the Supreme Court held 

### 14
that the Immigration and Nationality Act unambiguously requires a 

### 15
notice to appear to include a hearing time and place to trigger 

### 16
the “stop

- time rule,” 138 S. Ct. at 2113

- 20, which cuts off an 

### 17
alien’s accrual of physical presence or residence for the purposes 

### 18
of qualifying for cancellation of removal, see 8 U.S.C. § 122 9b(a), 

### 19
(b), (d)(1). Although Martinez Soriano applied for cancellation, 

### 20
his length of residence and the application of the stop

- time rule 

### 21
were not at issue and he was denied relief on alternative grounds. 

### 22

### 6 Accordingly, Pereira i s not relevant to his case. Any argument 

### 1

that his notice to appear did not vest jurisdiction in the 

### 2
Immigration Court because it omitted a hearing date and time is 

### 3
foreclosed by Banegas Gomez v. Barr , 922 F.3d 101 (2d Cir. 2019). 

### 4

Id. at 111

– 12. 

### 5
For the foregoing reasons, the petition for review is DENIED

. 

### 6

FOR THE COURT: 

### 7 Catherine O ’ Hagan Wolfe , 

### 8 Clerk of Court 

### 9