Cancellation of removal; Failure to meet 8 USC § 1252(d)’s exhaustion requirement; Ineffective assistance of counsel claim; Matter of Lozada (BIA); Kada v. Barr; Motion to reconsider under § 1229a(c)(6)(C); Motion to reopen under § 1229a(c)(7)(B); The government’s motion to reopen & dismiss; Board of Immigration Appeals (BIA); Immigration judge (IJ); Department of Homeland Security (DHS)

Because petitioner-Morris failed to comply with the procedural requirements for making an ineffective assistance claim to support his motion to reconsider and reopen as to cancellation of removal, the court held that the BIA did not err by denying his motion. The court also upheld the BIA’s denial of the government’s motion to reopen and dismiss where it was “unsupported.” Morris, who fled Liberia, was a lawful permanent resident who was convicted of embezzlement and firearm offenses. His counsel conceded removability and applied for cancellation of removal, which the IJ denied, an order affirmed by the BIA. Morris petitioned for review of that decision. He also moved to reconsider and reopen the case, asserting ineffective assistance of counsel and that his offense was not a removable firearms offense. The government also moved to reopen and dismiss. The BIA denied both motions. Morris petitioned for review of those decisions as well. The court held that it could not consider the removability claim where Morris did not exhaust his remedies as he failed to raise this issue before the BIA. As for the cancellation of removal, the court found that his challenges to the IJ’s, and the BIA’s, “ultimate decision to deny cancellation of removal are barred by § 1252(a)(2)(B).” The second petition centered on his compliance with the Lozada procedure for a claim of ineffective assistance. The parties disputed whether the copies of letters he attached to his motion to reconsider and reopen were sufficient “‘proof’ or ‘evidence’ of ‘fil[ing]’ required by Lozada.” The court had jurisdiction over this mixed question of fact and law, and reviewed for an abuse of discretion. It held that the BIA’s determination that the attachments were “insufficient to show Lozada compliance” was not an abuse of discretion. Morris “provided no postal documentation demonstrating that the photocopied letters and grievance forms had been sent to the addressees. Nor did his affidavit attest to doing so.” Failure to comply with Lozada’s requirements results in the forfeiture of an ineffective assistance claim. Finally, the court held that Morris’s claim related to the BIA’s denial of the government’s motion to reopen and dismiss failed on the merits where, as to reopening, the “DHS simply did not provide any new evidence” and as to dismissal, it “failed to explain what circumstances had changed.” The court dismissed Morris’s first petition for review and denied his second.