ORTIZ BONILLA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-19No. No. 19-70498

Summary · law.co

Holding. The petition for review is denied. The Board of Immigration Appeals did not err in rejecting Ortiz-Bonilla's claim of ineffective assistance of counsel because she failed to demonstrate any plausible grounds for relief that could have been raised in the underlying appeal.

Irma Nohemy Ortiz-Bonilla, a Salvadoran citizen, sought review of the Board of Immigration Appeals' decision to deny her motion to reopen her immigration case. Ortiz-Bonilla claimed her attorney provided ineffective assistance by failing to file a brief supporting her appeal of an immigration judge's earlier ruling. Although courts typically presume prejudice when an appeal brief is not filed, the court found that presumption was overcome here because Ortiz-Bonilla could not identify any viable legal grounds for relief that her attorney should have raised. The court determined that even if her counsel had filed the brief, it would not have changed the outcome since no meritorious arguments existed to challenge the immigration judge's decision.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether ineffective assistance of counsel excuses procedural bars to reopening immigration proceedings
Whether presumption of prejudice from failure to file an appeal brief was rebutted
Scope of appellate review in immigration cases limited to grounds raised before the agency

Procedural posture

Ortiz-Bonilla petitioned for judicial review of the Board of Immigration Appeals' February 2019 decision denying her motion to reopen filed in May 2018.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Irma Nohemy Ortiz-Bonilla, a native and citizen of El Salvador, petitions for review of a February 2019 decision of the Board of Immigration Appeals (BIA) that denied Ortizs May 2018 motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a)(1), Mata v. Lynch, 576 U.S. 143, 147–48, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015), and we deny the petition for review.

Ortizs May 2018 motion to reopen was time- and number-barred, but Ortiz argues that the BIA should have excused these bars due to ineffective assistance of counsel. Specifically, Ortiz claims that her counsel was deficient in not filing a brief in support of Ortizs appeal of the February 15, 2017 decision of the immigration judge (IJ), which denied her February 9, 2017 motion to reopen. Although the failure to file an appeal brief is presumed prejudicial when the appeal is dismissed summarily, the BIA did not err in concluding that the presumption of prejudice was rebutted here, because Ortiz failed to raise any plausible grounds for relief from the IJs February 15, 2017 ruling. See Singh v. Ashcroft, 367 F.3d 1182, 1186, 1189 (9th Cir. 2004). We agree with the BIA that Ortizs motion to reopen failed to identify any error in the IJs February 15, 2017 ruling. And Ortiz fails to raise any meaningful argument on appeal that the BIAs February 2019 decision was erroneous, because Ortiz again fails to raise any plausible grounds for relief that could have been raised on appeal of the IJs February 15, 2017 ruling.

Ortizs remaining arguments about errors in the 2014 removal proceedings and ineffectiveness of Ortizs original counsel in 2014 that were not raised in the motion to reopen before the BIA are not properly before us, because the scope of our review is limited to whether the BIA abused its discretion in denying reopening based on ineffective assistance of counsel during Ortizs appeal of the February 15, 2017 decision of the IJ, see Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011).

PETITION DENIED.