                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 30, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
WULFRANO PORTILLO-CASTRO,

             Petitioner,

v.                                                         No. 13-9539
                                                       (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


      Wulfrano Portillo-Castro petitions for review of an order by the Board of

Immigration Appeals (BIA) denying his motion to reconsider the BIA’s decision

affirming the denial of his request for cancellation of removal. Exercising

jurisdiction pursuant to 8 U.S.C. § 1252, we affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      Mr. Portillo-Castro, a native and citizen of Mexico, illegally entered this

country in 1992. In June 2007, the Department of Homeland Security (DHS)

initiated removal proceedings against him, alleging that he was present in the

United States without being admitted or paroled. Mr. Portillo-Castro admitted the

allegations and conceded removability. He then filed an application for cancellation

of removal. An alien may be eligible for cancellation of removal if he meets certain

requirements, including that he has not been convicted of a crime involving moral

turpitude (CIMT). See 8 U.S.C. § 1229b(b)(1)(C). The government asserted that

Mr. Portillo-Castro was ineligible for cancellation of removal because he had a 2003

conviction for domestic violence and he had failed to show that it was not a CIMT.

The immigration judge (IJ) agreed with the government, denied the application, and

ordered Mr. Portillo-Castro removed from the United States.

      Mr. Portillo-Castro appealed the IJ’s decision. The BIA agreed with the IJ’s

determination and dismissed the appeal. Mr. Portillo-Castro did not petition for

review of the BIA’s decision; instead, he hired new counsel and filed a motion to

reconsider. The BIA denied the motion and this petition for review followed.

                                          II.

      We review for abuse of discretion the BIA’s denial of a motion to reconsider.

See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).




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                                            A.

      In his motion to reconsider, Mr. Portillo-Castro argued that he was prejudiced

in his proceedings before the IJ and BIA because he was represented by incompetent

counsel, as evidenced by his first attorney’s disbarment by the Oklahoma Supreme

Court. He sought a remand to the IJ for a new hearing on his application for

cancellation of removal with his new attorney. He did not offer any specific

information about his first attorney’s performance other than to assert that his

application for cancellation of removal “on its face, is a tribute to [counsel’s]

incompetence.” Admin. R. at 16. He also asserted that the requirements in Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), for bringing claims of ineffective assistance

of counsel, were “not applicable as previous counsel was disbarred while the

underlying appeal was pending.” Admin. R. at 16.

      Under Lozada, “[a] motion based upon a claim of ineffective assistance of

counsel should be supported by an affidavit of the allegedly aggrieved respondent

attesting to the relevant facts.” 19 I. & N. Dec. at 639. Former counsel must be

informed of the allegations and allowed the opportunity to respond before the

allegations are presented to the BIA. Id. And, “the motion should reflect whether a

complaint has been filed with appropriate disciplinary authorities regarding such

representation, and if not, why not.” Id.




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        In its order denying the motion to reconsider on this issue, the BIA explained

that:

        [Counsel’s] disbarment alone does not cure [Mr. Portillo-Castro’s]
        unexplained failure to follow any of the procedures for making a timely
        ineffective assistance of counsel claim as set forth in Matter of Lozada,
        19 I&N Dec. 637 (BIA 1988). Evidence that [his] former counsel was
        disciplined does not prove that [he] was prejudiced by the actions of his
        counsel in this case.

Admin. R. at 3. The BIA further explained that Mr. Portillo-Castro’s “claim of

ineffective assistance of counsel lacks the necessary details we need to evaluate his

argument,” and also noted that he had not offered any legal authority to support his

position that his attorney’s disbarment rendered the Lozada requirements inapplicable

to his case. Id. The BIA further noted that the “Fifth Circuit has rejected a ‘flexible’

approach to the Lozada requirements argued for by [Mr. Portillo-Castro].” Id. The

BIA declined to reconsider its decision or remand the case to the IJ, explaining that

Mr. Portillo-Castro “ha[d] not presented any evidence to show that his prior counsel

incompetently represented him, that his prior counsel’s performance adversely

affected the outcome of his removal hearing, or that he was denied an opportunity to

fully present his case.” Id. at 4.

        On appeal, Mr. Portillo-Castro asserts that he was denied a full and fair

hearing on his application for cancellation of removal because he was represented by

ineffective counsel. He asserts that his conviction was not a CIMT under the relevant

Oklahoma statutes covering simple non-aggravated assault and misdemeanor

domestic assault and battery, which involve only a mere touching. He contends that

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“but for the failure of [his] counsel to provide the required documents to the

Immigration Court, a full, fair, and meaningful examination of all the appropriate

evidence would have been conducted and the result would have been different.” Pet.

Br. at 17. We may not consider this argument, however, because it was not presented

to the BIA. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1236-37 (10th Cir. 2010)

(explaining that alien must exhaust his administrative remedies before this court may

entertain his argument). As the BIA explained in its denial order, Mr. Portillo-Castro

argued that his attorney’s disbarment alone demonstrated that he received ineffective

assistance of counsel. In his motion to reconsider, he did not attempt to explain, as

he does now on appeal, how his counsel’s deficient performance prejudiced him, and

therefore the BIA did not have the opportunity to consider that argument. “[A]n

alien must present the same specific legal theory to the BIA before he or she may

advance it in [this] court.” Id. at 1237; see also Torres de la Cruz v. Maurer, 483

F.3d 1013, 1018 (10th Cir. 2007) (holding that petitioner’s general assertions in

motion to reopen were not sufficient to exhaust “specific issue” for which he sought

review from this court when it had not been presented to the BIA for consideration).

We therefore lack authority to entertain Mr. Portillo-Castro’s new argument

regarding his counsel’s deficient performance and related prejudice.

      Mr. Portillo-Castro next contends that the BIA should not have required strict

compliance with Lozada because the BIA applied Fifth Circuit law when it should

have applied Tenth Circuit law. The government concedes that the BIA should have


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applied Tenth Circuit law,1 but it asserts that any error is harmless because the result

in this case would be no different if the case were remanded back to the BIA. See

Nazaraghaie v. INS, 102 F.3d 460 (10th Cir. 1996) (applying harmless error analysis

in immigration context).

      Although we have yet to decide whether to require strict compliance with

Lozada, we have concluded that there was no abuse of discretion in the BIA’s denial

of a motion to reopen where the petitioner alleged ineffective assistance of counsel

but failed to comply with any of the Lozada requirements. See Tang v. Ashcroft,

354 F.3d 1192, 1196-97 (10th Cir. 2003). The holding in Tang controls the result in

this case. Mr. Portillo-Castro, like the petitioner in Tang, made no attempt to comply

with any of the Lozada requirements. Instead, Mr. Portillo-Castro claimed—without

citation to any authority—that Lozada does not apply when an attorney is disbarred.

Accordingly, if the case were remanded to the BIA to apply Tenth Circuit law, it

would reach the same result.

      Mr. Portillo-Castro also contends that he could not strictly comply with the

Lozada requirement to file a bar complaint because his attorney had already been


1
       The proceedings before the IJ occurred in Oklahoma City, Oklahoma, within
the jurisdiction of the Tenth Circuit. But, according to the government, the
Administrative Control Court for the immigration court in Oklahoma City is located
in Dallas, Texas. As a result, the caption to the IJ’s decision states “Dallas
Immigration Court.” See Admin. R. at 222. As the government explains, “it appears
that the Board may have cited Fifth Circuit law under the mistaken belief that
immigration proceedings were conducted in Texas, which is within the jurisdiction of
the Fifth Circuit.” Resp. Br. at 18 n.6.


                                          -6-
disbarred. His attorney’s disbarment, however, does not excuse his non-compliance

with the Lozada requirements. Mr. Portillo-Castro does not explain how he was

prevented from complying with the first requirement to submit an affidavit with

the relevant facts, or how he was prevented from complying with the second

requirement to notify his counsel of the allegations against him and give him an

opportunity to respond. See Tang, 354 F.3d at 1196 (outlining Lozada’s

requirements). Moreover, Lozada does not require the filing of a bar complaint in all

situations as Mr. Portillo-Castro appears to believe; instead, the Lozada motion

“should reflect whether a complaint has been filed with appropriate disciplinary

authorities regarding [the deficient] representation, and if not, why not.” Id. (internal

quotation marks omitted) (emphasis added). Mr. Portillo-Castro could easily have

fulfilled the third Lozada requirement by indicating that he did not file a complaint

with the Oklahoma Supreme Court because his attorney had already been disbarred.

Under these circumstances, we see no abuse of discretion in the BIA’s decision to

deny the motion to reconsider on this issue.

                                           B.

      Mr. Portillo-Castro next contends that the BIA erred in denying his request to

reconsider the agency’s determination that he has a conviction for a CIMT. In his

motion to reconsider, Mr. Portillo-Castro asserted that the IJ and BIA erroneously

concluded that he had a CIMT conviction when there is an absence of documents

related to his conviction in the administrative record. In denying the motion to


                                          -7-
reconsider on this issue, the BIA found that Mr. Portillo-Castro was raising the same

or similar arguments that were raised in his previous appellate brief. The BIA

reaffirmed the IJ’s conclusion that Mr. Portillo-Castro “did not meet his burden to

prove that his Oklahoma criminal conviction for domestic assault and battery was not

a CIMT.” Admin. R. at 4. On appeal, Mr. Portillo-Castro continues to argue that he

does not have a CIMT conviction, speculating that he was convicted under Oklahoma

statutes for either simple assault or misdemeanor domestic assault and battery that

only involve an act of mere touching.

      An alien who has conceded removability bears “the burden of establishing that

he or she is eligible for any requested benefit or privilege and that it should be

granted in the exercise of discretion.” Garcia v. Holder, 584 F.3d 1288, 1289

(10th Cir. 2009) (internal quotation marks omitted). Mr. Portillo-Castro admitted

that he was arrested in 2003 for domestic assault and battery for hitting his wife, and

there is a document from the Tulsa County Sheriff’s Office confirming that

information. He also submitted a letter confirming his attendance at 24 sessions in

the counseling program at Domestic Violence Intervention Services. He failed,

however, to submit documentary evidence related to his conviction, including the

specific statute of conviction and any sentencing information.2 We have previously


2
       Although Mr. Portillo-Castro argues on appeal that his first attorney was
ineffective for failing to submit evidence related to his conviction, his current
attorney did not submit any evidence in the motion to reconsider related to his
conviction or explain why the documents could not be obtained.


                                          -8-
held that where the record is inconclusive as to whether an alien committed a CIMT,

the alien has failed to demonstrate eligibility for cancellation of removal. See id. at

1290 (“Because it is unclear from [petitioner’s] record of conviction whether he

committed a CIMT, we conclude he has not proven eligibility for cancellation or

removal . . . .”). Accordingly, we see no abuse of discretion in the BIA’s decision to

deny the motion to reconsider on this issue.

                                           III.

      For the foregoing reasons, we deny the petition for review.


                                                  Entered for the Court


                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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