FILED NOT FOR PUBLICATION JUL 05 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MYRNA SADOWSKI, No. 13-73914 Petitioner, Agency No. A071-532-684 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 15, 2018** Honolulu, Hawaii Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges. Petitioner Myrna Sadowski, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing her * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). appeal of an immigration judge’s (“IJ”) final order of removal. We deny the petition in part and dismiss it in part. 1. Sadowski first argues that the Department of Homeland Security (“DHS”) did not establish removability because she is not bound by her counsel’s concession of removability. “Absent egregious circumstance,” an attorney’s concession of removability may bind an alien and serve as evidence of removability. Santiago-Rodriguez v. Holder, 657 F.3d 820, 830 (9th Cir. 2011) (quoting Matter of Velasquez, 19 I. & N. Dec. 377, 382 (B.I.A. 1986)). Sadowski contends that her attorney’s ineffectiveness constitutes an egregious circumstance, in part because the attorney should not have conceded removability. As described below, we conclude that Sadowski’s attorney was not ineffective, and that there are no “egregious circumstances” to justify ignoring the concession. Therefore, DHS established that Sadowski was removable. Even absent the concession, there is clear and convincing evidence that Sadowski was removable. Sadowski’s age was a material fact on her application to adjust status because, by including her false date of birth, she covered up the fact that she had misrepresented her age on previous applications. If Sadowski had included her correct date of birth on the application, DHS would have seen that she had misrepresented her age on previous applications and initiated removal 2 proceedings against her. See Fedorenko v. United States, 449 U.S. 490, 509 (1981) (“At the very least, a misrepresentation must be considered material if disclosure of the true facts would have made the applicant ineligible for a visa.”). 2. Sadowski next alleges that her counsel’s ineffectiveness constituted a due process violation. Where a petitioner asserts ineffective assistance of counsel on appeal to the BIA, the challenge is treated as a motion to reopen. Correa- Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013) (citing Iturribarria v. INS, 321 F.3d 889, 891 (9th Cir. 2003)). Because Sadowski did not comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988),1 this Court can only find ineffective assistance of counsel if it is plain from the administrative record. Castillo-Perez v. INS, 212 F.3d 518, 525–26 (9th Cir. 2000). On this record, Sadowski’s counsel’s performance was not plainly ineffective. Conceding removability ...
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