                              UNPUBLISHED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Petition for review denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 “unlawful-

entry 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

                                           2
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.

                                              3
       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.



                                           4
       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

                                             5
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 unlawful-

entry 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

                                                6
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).

                                         7
                                                   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   unlawful-

entry 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

                                                   8
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



                                                 9
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).


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