                                                                              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                            NOT FOR PUBLICATION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 is often a tactical choice within the counsel’s

professional judgment. See Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th

Cir. 1986). And, there is no evidence that Sadowski’s attorney failed to discuss the


      1
             Sadowski argues that she has now complied with the Lozada
requirements, and asks the Court to grant her motion to transmit exhibits,
purportedly evidencing compliance. See Dkt. no. 10. We deny this motion
because the documents were never before the BIA. See Fisher v. INS, 79 F.3d 955,
963 (9th Cir. 1996) (en banc).
                                           3
decision to concede with Sadowski. Further, Sadowski’s attorney’s performance

was not plainly deficient with respect to Sadowski’s cancellation of removal

applications or her waiver of removability application. The BIA did not abuse its

discretion in rejecting Sadowski’s motion to reopen.

      3.     Finally, Sadowski argues that the BIA erred in denying her a waiver

of removability. We may, of course, review colorable questions of law, see 8

U.S.C. § 1252(a)(2)(D), but we do not have jurisdiction to review how the BIA

weighed the discretionary factors in its waiver analysis, see 8 U.S.C. §

1252(a)(2)(B)(ii). Here, Sadowski attempts to shoehorn her claims into a legal

question, but she really takes issue with how the BIA weighed the equities. This is

clearly an exercise of discretion over which we do not have jurisdiction. See San

Pedro v. Ashcroft, 395 F.3d 1156, 1157–58 (9th Cir. 2005).

                                    •   !     •

      The petition is DENIED in part and DISMISSED in part.




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