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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10655
Non-Argument Calendar
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Agency No. A088-490-356
RIGOBERTO VALDEZ SALAZAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 4, 2020)
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
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Rigoberto Guadalupe Valdez Salazar seeks review of the Board of
Immigration Appeals’ (“BIA”) final order dismissing his appeal from the
immigration judge’s (“IJ”) decision denying his second motion to reopen. Salazar
argues that he received ineffective assistance of counsel because his two former
attorneys withdrew his application for cancellation of removal without his consent,
misled him into accepting voluntary departure, and failed to properly assert his rights
in his first motion to reopen. For the following reasons, we grant Salazar’s petition
and remand for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
Salazar, a native and citizen of Mexico, entered the United States without
permission at an unknown location in July 1996. He has remained in the United
States since that time and fathered two children, both of whom are United States
citizens. On February 2, 2008, following his arrest for a minor traffic infraction, the
Department of Homeland Security (“DHS”) filed a Notice to Appear (“NTA”) with
the immigration court initiating removal proceedings against Salazar. The NTA
charged removability on the grounds that Salazar was present in the United States
without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i).
Salazar retained Robert Piccarreto as counsel to assist him with an application
for cancellation of removal, and on July 29, 2008, Salazar with Piccarreto appeared
before the IJ for his master calendar hearing. At the hearing, Salazar, through his
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counsel, admitted the factual allegations in the NTA and filed an application for
cancellation of removal or, in the alternative, voluntary departure. On October 10,
2012, Salazar, again with Piccarreto, appeared at a second hearing. The record does
not expressly reveal what happened at the October hearing, although the events of
that hearing remain relevant. Salazar claims that, minutes before the hearing,
Piccarreto informed him in English and without a translator that he must withdraw
his application for cancellation of removal and accept voluntary departure. Although
he did not understand what Piccarreto was saying, Salazar followed his attorney’s
instructions and signed and initialed the document requesting voluntary departure.
What is clear from the record is that, during the hearing, Piccarreto, on behalf of
Salazar, withdrew the application for cancellation of removal and submitted the
voluntary departure request. The IJ granted Salazar pre-conclusion voluntary
departure, allegedly issued the required advisals about the consequences of
voluntary departure, and ordered Salazar to depart the United States by February 7,
2013.
Salazar, however, did not depart. On March 8, 2018—more than six years
after he was ordered to depart the United States—Salazar hired new counsel, Uriel
Delgado, and filed his first motion to reopen, arguing that the proceedings against
him should be reopened because he received ineffective assistance of counsel from
his former attorney, Piccarreto, and because he was statutorily eligible for
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cancellation of removal. On June 6, 2018, the IJ denied the motion, finding that it
was untimely and that Salazar had failed to comply with the requirements for raising
an ineffective assistance of counsel claim. The IJ further stated that even if
Piccarreto had failed to adequately inform him about his request for voluntary
departure, there was sufficient evidence on the record—i.e., Salazar initialed the
document in thirteen locations and signed it, he did not speak up during the hearing
where a translator was present about the request, and he received notice of the grant
of the request with instructions and warnings—to indicate that Salazar voluntarily
requested voluntary departure.
On July 17, 2018, Salazar, through his then-counsel Delgado, filed a motion
to reconsider, which was denied by the IJ because it raised the same facts and
arguments as in the motion to reopen. Shortly after this denial, Salazar again sought
new counsel. On December 3, 2018, Salazar, through his new and current counsel,
Maura Finn, filed a second motion to reopen. In the second motion to reopen,
Salazar argued that he received ineffective assistance of counsel from his two prior
attorneys, that this ineffectiveness should equitably toll the time and number
limitations on the motion to reopen, and that he is prima facie eligible for
cancellation of removal.
On May 22, 2019, the IJ denied the second motion to reopen, finding that it
was time- and number-barred. The IJ further found that Salazar voluntarily
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requested pre-conclusion voluntary departure as evidenced by the request that he
signed and initialed thirteen times and the fact that he did not object to or ask
questions about the request during the hearing. Because the request was voluntarily
made, the IJ stated that any claimed ineffective assistance of counsel did not negate
the request. The IJ then declined to favorably exercise his sua sponte authority to
reopen proceedings.
Salazar timely appealed the IJ’s denial to the BIA. The BIA dismissed
Salazar’s appeal, finding that he failed to satisfy the procedural requirements to raise
a claim of ineffective assistance of counsel, that he failed to establish that he suffered
prejudice from his former counsels’ ineffectiveness, and that his initial counsel’s,
Piccarreto, actions showed that he was merely making a tactical decision related to
Salazar’s case. The BIA further agreed with the IJ that this case did not warrant the
exercise of its discretion to sua sponte reopen the case. This timely petition for
review followed.
II. STANDARD OF REVIEW
We review the denial of a motion to reopen an immigration proceeding for
abuse of discretion, determining only “whether the BIA exercised its discretion in
an arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256
(11th Cir. 2009). “The BIA abuses its discretion when it misapplies the law in
reaching its decision,” or when it fails to follow “its own precedents without
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providing a reasoned explanation for doing so.” Ferreira v. U.S. Att’y Gen.,
714
F.3d 1240, 1243 (11th Cir. 2013). The appellant bears a heavy burden in proving
arbitrariness or capriciousness because motions to reopen in the context of removal
proceedings are particularly disfavored. Zhang v. U.S. Att’y Gen.,
572 F.3d 1316,
1319 (11th Cir. 2009). The BIA, however, must have given “reasoned
consideration” to a petitioner’s claims, and we will remand if its explanation (or lack
thereof) makes “meaningful review” impossible. Jeune v. U.S. Att’y Gen.,
810 F.3d
792, 803 (11th Cir. 2016).
III. ANALYSIS
The BIA’s dismissal of Salazar’s appeal lacked the requisite “reasoned
consideration” to allow us to meaningfully review this petition. Generally, an alien
can file only one motion to reopen and must do so within ninety days of the final
order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). This ninety-day deadline and
numerical limitation are subject to equitable tolling, but only if a petitioner has
diligently pursued his rights and some “extraordinary circumstance stood in his
way.” Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d 860, 872 (11th Cir. 2018) (quoting
Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Where a motion to reopen raises
an ineffective assistance claim, the facts underlying such a claim may serve as the
basis for both equitable tolling and the merits of a motion to reopen, but the inquiries
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into equitable tolling and the merits remain separate. Ruiz-Turcios v. U.S. Att’y
Gen.,
717 F.3d 847, 851 (11th Cir. 2013).
Here, the BIA merely reiterated the IJ’s findings that Salazar’s second motion
to reopen was time and number barred. But it failed to address Salazar’s argument
that the filing deadline and motion number should be equitably tolled because of his
two prior counsels’ ineffective assistance. The BIA was completely silent as to any
claimed diligence on Salazar’s part or whether the ineffective assistance of his prior
counsels constituted an “extraordinary circumstance.” And although the BIA need
not have addressed the “crux” of each claim,
Lin, 881 F.3d at 875, the bare bones
decision before us does not make it clear whether it considered Salazar’s arguments
at all or whether any of those arguments may justify tolling here. We therefore grant
Salazar’s petition and remand to the BIA to make such a determination in the first
instance.
With regard to the merits of Salazar’s ineffective assistance of counsel claim,
the BIA expressly adopted the IJ’s determination that Salazar had not satisfied the
procedural requirements laid out in Matter of Lozada, 19 I. & N. 637 (BIA 1988),
for raising a claim of ineffective assistance of counsel and that exceptional
circumstances were not present to warrant sua sponte reopening. The BIA also
agreed with the IJ’s determination that Salazar had not shown the requisite prejudice
to establish ineffective assistance of counsel. Because the BIA expressly adopted
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and agreed with the IJ’s opinion on these issues, we review both the decisions of the
BIA and the IJ. See Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 947–48 (11th Cir. 2010).
Like the BIA’s analysis regarding the motion to reopen, the BIA’s analysis
here was also lacking. Aliens have the right to retain private counsel in their removal
proceedings. 8 U.S.C. § 1362. And aliens who are represented in removal
proceedings have the right to effective assistance of counsel. Gbaya v. U.S. Att’y
Gen.,
342 F.3d 1219, 1221 (11th Cir. 2003) (citing Mejia-Rodriguez v. Reno,
178
F.3d 1139, 1146 (11th Cir. 1999)). To raise a successful ineffective assistance of
counsel claim, a petitioner must establish “substantial, if not exact, compliance with
the procedural requirements of Lozada” and must also show that counsel’s
performance was deficient and resulted in prejudice. Dakane v. U.S. Att’y Gen.,
399
F.3d 1269, 1274 (11th Cir. 2005). “Prejudice exists when the performance of
counsel is so inadequate that there is a reasonable probability that but for the
attorney’s error, the outcome of the proceedings would have been different.”
Id.
The parties do not dispute that Salazar did in fact substantially meet the
procedural requirements to raise an ineffective assistance of counsel claim. Rather,
they dispute the correctness of the BIA’s affirmance of the IJ’s determinations that
Salazar was not prima facie eligible for the underlying relief sought and that he failed
to show prejudice. As to the eligibility determination, the BIA held that the IJ
properly denied Salazar’s motion to reopen because he cannot show prima facie
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eligibility for the relief he seeks—cancellation of removal. The IJ held that because
Salazar failed to depart by the date set out in his voluntary departure order, he is not
eligible for cancellation of removal until 2022. It is true that “a motion to reopen
will not be granted unless the [petitioner] establishes a prima facie case of eligibility
for the underlying relief sought.” Matter of S-V-, 22 I. & N. Dec. 1306, 1307 (B.I.A.
2000) (citing INS v. Abudu,
485 U.S. 94 (1988)). But the IJ and BIA misconstrued
the underlying relief sought—namely, if Salazar’s counsel had not been ineffective,
he would not have withdrawn his initial application for cancellation nor accepted
voluntary departure. As such, the eligibility determination must be based on his
eligibility for cancellation back at the initial hearing prior to any request for
voluntary departure, not based on the circumstances as they stand today.
As to its finding of no prejudice, the BIA held that the IJ correctly found that
Salazar failed to show that he suffered actual prejudice from his prior counsels’
conduct and adopted the IJ’s reasoning for that conclusion. The IJ held that there
was no prejudice because any alleged ineffectiveness by Salazar’s prior counsel did
not negate the fact that it found that Salazar had voluntarily taken pre-conclusion
voluntary departure. Salazar argues that the IJ’s prejudice finding failed to take into
account the fact that the document he signed was in English, which he does not
understand; his initial attorney did not speak Spanish, the only language Salazar does
speak, and there was no translator present when his attorney instructed him to sign
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and initial the request; although there was a translator present at the October hearing,
the IJ never asked any questions directed to Salazar about the request or whether it
was being made voluntarily; and neither the IJ nor his attorney provided Salazar with
an explanation in Spanish of what voluntary departure entailed and the warnings of
failing to comply with the order. Based on these facts, according to Salazar, he
would not have requested or accepted voluntary departure but for the failures of his
initial attorney.
Salazar, however, failed to request or provide the transcript from the October
hearing, so our review of his voluntariness is hampered by the inadequacy of the
record before us. And although “we can review an alien’s petition for review
asserting lack of voluntariness without a transcript” where the IJ re-created and
memorialized its findings in a written order, if “we are unclear whether the recreation
reflects the entirety of the hearing” or “uncertain whether the record has been
adequately reconstructed,” a remand is appropriate. Flores-Panameno v. U.S. Att’y
Gen.,
913 F.3d 1036, 1041–42 (11th Cir. 2019). Here, such a remand is appropriate.
The IJ stated that he reviewed Salazar’s request for voluntary departure, which was
signed and initialed by Salazar thirteen times, that Salazar never spoke up at the
October hearing protesting departure or questioning the request, and that the IJ
provided Salazar a written notice of his voluntary departure with additional
instructions and warnings. It remains unclear, however, whether the IJ’s statements
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relating to the October hearing adequately reconstruct the record for our review.
And given Salazar’s argument—that he was misled by his initial attorney into
signing the request and was never questioned or informed about the consequences
of the request—it would be pertinent to know whether the written notice provided
to Salazar was ever translated for him and if the IJ engaged in any form of colloquy
directly with Salazar. “For example, did the IJ ask if [Salazar] had any questions or
concerns? An open-ended question such as that one could have prompted [him] to
inquire about the veracity of [his] attorney’s advice” and the voluntariness of his
request. See
id. at 1042. Although the IJ may well have done so, we have no way
of knowing based on the record before us. We therefore also remand for the BIA to
determine the scope of the IJ’s recreation of the record.
IV. CONCLUSION
For the foregoing reasons, we grant Salazar’s petition, vacate the BIA’s
decision, and remand the case to the BIA for further proceedings consistent with this
opinion. We note that our decision in no way finds that Salazar’s motion to reopen
should be tolled or that he has met his burden to reopen removal proceedings.
Rather, we remand for the BIA to make a tolling determination in the first instance
and, if it is determined that tolling is warranted, to provide reasoned consideration
on Salazar’s ineffective assistance claims consistent with our opinion.
PETITION GRANTED.
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