UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1150

JOSE ANGEL REYES CARBAJAL,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General of the United States,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: May 10, 2016 Decided: July 27, 2016

Before MOTZ, KING, and HARRIS, Circuit Judges.

Petition for review denied by unpublished per curiam opinion.

ARGUED: Maris J. Liss, Silver Spring, Maryland, for Petitioner. 

Tim Ramnitz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Respondent. ON BRIEF: Patricia B. Minikon, MINIKON 

LAW, LLC, Greenbelt, Maryland, for Petitioner. Benjamin C. 

Mizer, Principal Deputy Assistant Attorney General, Shelley R. 

Goad, Assistant Director, Office of Immigration Litigation, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In 2005, petitioner Jose Angel Reyes Carbajal, a native of 

Honduras unlawfully present in the United States, was placed in 

removal proceedings and voluntarily departed the country. Two 

years later, he unlawfully returned, triggering the “unlawfulentry bar,” which renders inadmissible aliens who attempt to 

reenter the country after previous immigration violations. See

8 U.S.C. § 1182(a)(9)(C)(i)(I). When the government again 

sought to remove him, Reyes Carbajal argued that this bar to his 

admissibility should be excused because his original 2005 

proceeding had been rendered fundamentally unfair by the 

deficient performance of his counsel. Because we find that 

Reyes Carbajal’s inadmissibility was caused by his independent 

decision to return to the United States unlawfully and not by 

any alleged defect in his counsel’s performance, we deny the 

petition without reaching the merits of Reyes Carbajal’s 

ineffective assistance claim. 

I.

A.

Reyes Carbajal originally entered the United States in 

2000, at the age of fifteen. The following year, his father 

filed an I-130 visa petition on his behalf. If approved, the 

visa would classify Reyes Carbajal as an unmarried child of a 
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lawful permanent resident, allowing him to remain in the 

country. 

In 2004, with the I-130 visa petition still pending, the

government placed Reyes Carbajal in removal proceedings. Reyes 

Carbajal explained that he intended to seek an adjustment of 

status if a visa became available, and the immigration judge 

granted a nine-month continuance to await action on the visa 

petition. In connection with the now-continued removal 

proceeding, Reyes Carbajal retained the services of attorney 

Arnulfo Chapa, agreeing to pay Chapa $2500 for his assistance. 

On March 15, 2005, Chapa represented Reyes Carbajal before 

the immigration judge. The immigration judge denied a request 

for an additional continuance and found Reyes Carbajal 

removable. But the judge granted Reyes Carbajal voluntary 

departure up to July 13, 2005, and told Chapa that if the visa 

application were approved before departure, then Chapa could 

move to reopen the proceedings and seek to adjust Reyes 

Carbajal’s status. 

On May 23, 2005 — well before Reyes Carbajal’s July 13, 

2005, departure date — the government approved the visa 

petition, and mailed notice of the approval to Reyes Carbajal’s 

father and to his attorney, Chapa. On June 9, still before the 

departure date, Reyes Carbajal’s visa became immediately 

available for his use. 
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Nevertheless, Chapa did not discuss with Reyes Carbajal the 

approved visa petition or the possibility of reopening the 

removal proceedings. Instead, according to Reyes Carbajal, 

Chapa had told him that there was no need to reopen the 

proceedings, as the immigration judge had suggested; once Reyes 

Carbajal returned to Honduras, he simply could go to the United 

States embassy in that country and apply for an immigrant visa. 

That guidance was incorrect: Under the “10-year bar” of 8 

U.S.C. § 1182(a)(9)(B)(i)(II), aliens like Reyes Carbajal may 

not return to the United States for 10 years after a voluntary 

departure. But Reyes Carbajal, on the advice of his attorney, 

departed the United States on July 11, 2005, without moving to 

reopen his proceedings to take account of the visa now available 

to him. 

In January 2006, Chapa followed through on his advice to 

Reyes Carbajal, filing paperwork at the United States consulate 

in Honduras seeking an immigrant visa for Reyes Carbajal. The 

consulate denied the visa because Reyes Carbajal was 

inadmissible under the 10-year bar. Chapa then sought an 

exemption from the 10-year bar for Reyes Carbajal, filing a Form 

I-601 under 8 U.S.C. § 1182(a)(9)(B)(v) and seeking a waiver of 

inadmissibility on the basis of extreme hardship to Reyes 

Carbajal’s father. 
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Reyes Carbajal did not wait for the consulate to act on 

this waiver request. Instead, in May 2007, he reentered the 

United States without authorization. That unlawful reentry 

triggered a new bar to admissibility. Under 8 U.S.C. 

§ 1182(a)(9)(C)(i)(I)’s “unlawful-entry bar,” an alien who has 

been unlawfully present in the United States for more than a 

year becomes ineligible for admissibility if he subsequently 

enters the country illegally. Under that provision, Reyes 

Carbajal became inadmissible when he returned to the United 

States in 2007. In 2009, his I-601 waiver request was denied.

B.

In 2011, the government placed Reyes Carbajal in removal 

proceedings for a second time. With new counsel representing 

him, Reyes Carbajal conceded that he was removable but announced

that he would pursue adjustment of status based on the visa 

approved in 2005. The government argued that regardless of the 

visa, Reyes Carbajal was ineligible for admission under both the 

10-year bar and the unlawful-entry bar. 

It is at that point in the proceedings that Reyes Carbajal 

raised the ineffective assistance claim at issue here, relying 

on Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), in which 

the Board of Immigration Appeals (“BIA” or “Board”) set out the 

circumstances under which ineffective assistance of counsel may 

be grounds for reopening or reconsideration in removal 
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proceedings. According to Reyes Carbajal, his inadmissibility 

under the 10-year and unlawful-entry bars should be excused 

because Chapa, his former attorney, rendered ineffective 

assistance in connection with his 2005 removal proceedings. 

Specifically, Reyes Carbajal alleged, Chapa failed to move to 

reopen his proceedings when his visa became available, as 

suggested by the immigration judge, and instead advised him —

incorrectly — that he could apply for an immigration visa in 

Honduras after voluntarily departing the United States. As a 

result, Reyes Carbajal contended, he left the country even after 

a visa had become available to him, triggering the 10-year bar, 

and then reentered unlawfully, bringing to bear the unlawfulentry bar, as well. 

On January 7, 2013, the immigration judge issued a decision 

denying Reyes Carbajal’s application for adjustment of status 

and ordering him removed to Honduras. Reyes Carbajal was 

rendered inadmissible and thus ineligible for adjustment of 

status, the immigration judge found, under both the 10-year and 

unlawful-entry bars. And the immigration judge rejected Reyes 

Carbajal’s ineffective assistance of counsel claim, calling into 

question whether Reyes Carbajal had satisfied Lozada’s standards 

for making out such a claim and holding that in any event, it 

was Reyes Carbajal’s independent decision to unlawfully return 

to the United States in 2007 and not any action by prior counsel 
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that triggered the unlawful-entry bar and rendered Reyes 

Carbajal inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). 

On appeal, the Board dismissed Reyes Carbajal’s appeal and 

adopted and affirmed the immigration judge’s decision. Like the 

immigration judge, the Board found that Reyes Carbajal’s 

unlawful presence and unlawful reentry rendered him inadmissible 

under 8 U.S.C. § 1182(a)(9)(B)(i)(II) (the 10-year bar) and 

(C)(i)(I) (the unlawful-entry bar). Regarding ineffective 

assistance of counsel, the Board concluded that Reyes Carbajal 

could not make the requisite showing of ineffective assistance 

under Lozada. 

Reyes Carbajal timely petitioned this court for review. We 

have jurisdiction under 8 U.S.C. § 1252.

II.

A.

“Where, as here, the BIA has adopted and supplemented the 

IJ’s decision, we review both rulings.” Jian Tao Lin v. Holder, 

611 F.3d 228, 235 (4th Cir. 2010). The agency’s determination 

that an alien is inadmissible is “conclusive unless manifestly 

contrary to law.” 8 U.S.C. § 1252(b)(4)(C). We review legal 

questions de novo, and an immigration judge’s findings of fact 

for substantial evidence. See Djadjou v. Holder, 662 F.3d 265, 

273 (4th Cir. 2011). 
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B.

Before this court as before the immigration judge and 

Board, Reyes Carbajal argues that Chapa’s ineffective assistance 

in connection with his 2005 removal proceedings should excuse 

his inadmissibility under 8 U.S.C. § 1182(a)(9)(B)(i)(II) and 

(C)(i)(I). According to Reyes Carbajal, the immigration judge 

and BIA misapplied Lozada to his case, erroneously finding that 

he had not met Lozada’s requirements for showing ineffective 

assistance of counsel. And because Chapa’s performance was 

indeed deficient under Lozada, Reyes Carbajal argues, he should 

be permitted to apply now for adjustment of status as though he 

never departed in 2005, triggering the 10-year bar, and thus 

never unlawfully reentered in 2007, triggering the unlawfulentry bar. 

The Attorney General’s principal argument in response is 

that because Reyes Carbajal is solely responsible for his 

inadmissibility under the unlawful-entry bar, that bar cannot be 

excused regardless of any alleged ineffective assistance of 

counsel. As the Attorney General emphasizes, Reyes Carbajal 

alone decided to return to the United States in 2007, 

independent of counsel’s advice — and, indeed, at a time when 

counsel had filed a request with the United States consulate in 

Honduras to waive his inadmissibility. It was Reyes Carbajal’s 

own election to disregard that pending request and reenter the 
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United States unlawfully that triggered his inadmissibility 

under 8 U.S.C. § 1182(a)(9)(C)(i)(I). And it follows, the 

Attorney General contends, that Reyes Carbajal remains 

inadmissible under that unlawful-entry bar, whether or not 

counsel’s alleged ineffectiveness might have caused him to 

depart voluntarily in 2005 and become inadmissible under the 

separate 10-year bar. 

We agree with the Attorney General. We may put to one side 

whether Chapa’s performance in connection with the 2005 removal 

proceedings constituted ineffective assistance of counsel under 

Lozada, causing Reyes Carbajal’s voluntary departure and 

resulting inadmissibility under 8 U.S.C. 

§ 1182(a)(9)(B)(i)(II)’s 10-year bar. Whatever the alleged 

deficiencies in Chapa’s 2005 performance, it was Reyes 

Carbajal’s decision — and his alone — to reenter the United 

States unlawfully in 2007, and it was that decision — and that 

decision alone — that triggered 8 U.S.C. § 1182(a)(9)(C)(i)(I)’s 

unlawful-entry bar. Nothing that happened in 2005, and nothing 

that Chapa said or did, caused Reyes Carbajal in 2007 to 

disregard the waiver application then pending at the consulate 

and the lawful procedure for reentering the United States. 

Because 8 U.S.C. § 1182(a)(9)(C)(i)(I) is an independent bar to 

admissibility, and because its application to Reyes Carbajal is 
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unrelated to any ineffective assistance he may have received, 

Reyes Carbajal is not entitled to the relief he seeks.

In light of that determination — the same one reached by 

the immigration judge and adopted by the BIA — we need not reach 

the merits of Reyes Carbajal’s ineffective assistance claim

under Lozada.* Reyes Carbajal is inadmissible for reasons 

independent of any ineffective assistance he may have received 

from counsel, and that is enough to dispose of this case. 

PETITION FOR REVIEW DENIED

 * Nor need we revisit whether, apart from the administrative 

remedy for ineffective assistance of counsel recognized in 

Lozada, the Fifth Amendment’s Due Process Clause provides an 

independent basis for ineffective assistance of counsel claims 

in removal proceedings. See Afanwi v. Mukasey, 526 F.3d 788, 

797–99 (4th Cir. 2008) (recognizing that “a number of circuits 

have held that counsel’s performance in a removal proceeding can 

be so deficient that it deprives the alien of his due process 

right to a fair hearing,” but holding that retained counsel’s 

ineffectiveness in a removal proceeding does not give rise to a 

constitutional claim), vacated on other grounds, 130 S. Ct. 350 

(2009).