Aviles Martinez v. Blanche

── Aviles Martinez v. Blanche ── Court: Court of Appeals for the Ninth Circuit Date: June 01, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HECTOR EDGARDO AVILES No. 24-7810 MARTINEZ; C. A. A. A.; D. A. A.; SARAI Agency Nos. ABIGAIL ANGEL PEREZ, A208-578-158 A216-916-426 Petitioners, A216-916-427 A216-916-461 v. TODD BLANCHE, Acting Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 18, 2026 Phoenix, Arizona Before: BERZON, M. SMITH, and HURWITZ, Circuit Judges. Hector Edgardo Aviles Martinez, Sarai Abigail Angel Perez, and their daughters1 petition for review of a decision by the Board of Immigration Appeals (“BIA”) denying their motion to reopen. The motion contended that the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Aviles Martinez, Angel Perez, and their daughter C.A.A.A. are natives and citizens of El Salvador. Their daughter D.A.A. is a native and citizen of Mexico. Petitioners’ attorney provided ineffective assistance by failing timely to file a Notice of Appeal with the BIA, which resulted in the BIA’s dismissal of the Petitioners’ appeal. We review the denial of a motion to reopen for abuse of discretion. See Cui v. Garland, 13 F.4th 991, 995 (9th Cir. 2021). We grant the petition. 1. An ineffective assistance of counsel claim generally must comply with the procedural requirements outlined in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). But Lozada’s requirements “are not sacrosanct.” Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006) (quoting Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000)). Ineffective assistance of counsel claims may proceed “when there is substantial compliance with Lozada such that the purpose of Lozada is fully served by other means.” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824–25 (9th Cir. 2003) (citation modified). And noncitizens need not satisfy Lozada’s procedural requirements when the alleged “ineffectiveness of counsel was plain on its face.” Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir. 2019) (citation modified). Here, the facts “demonstrate[] the legitimacy of petitioners’ ineffective assistance complaint—relieving them of the need technically to comply with Lozada.” Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002). The Petitioners’ attorney filed a “Motion to File Late Appeal” stating that she had represented to the Petitioners that she would file the Notice of Appeal “well 2 24-7810 within” the deadline but failed to do so. The attorney’s acceptance of responsibility for the untimely filing is thus in the record. The attorney also entered Form EOIR- 27 appearances on behalf of each of the Petitioners, indicating that she intended to represent the family throughout the appeal. The BIA’s summary dismissal of the Petitioners’ appeal was a direct consequence of the attorney’s deficient performance. “Failing to file a timely notice of appeal is obvious ineffective assistance of counsel.” Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004). Because the former attorney’s ineffective assistance of counsel “is plain on the record,” “we need not address the BIA’s