Jose Ramirez-Perez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LEONARDO RAMIREZ-PEREZ, No. 14-73476
15-70589
Petitioner, 16-71694
v. Agency No. A029-277-936
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2019
Pasadena, California
Before: TASHIMA and PAEZ, Circuit Judges, and KATZMANN,** Judge.
Petitioner Jose Leonardo Ramirez-Perez conceded removability and sought
cancellation of removal pursuant to 8 U.S.C. § 1229b(b) in immigration court in
1999. The immigration judge found that Ramirez-Perez had established good moral
character, a requirement for cancellation of removal. The immigration judge found,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
however, that Ramirez-Perez failed to establish by clear and convincing evidence
two requirements: (1) continual presence in the United States of ten years; and (2)
that removal would result in exceptional and extremely unusual hardship to a U.S.
citizen child. The immigration judge thus concluded that Ramirez-Perez did not
qualify for cancellation of removal. After a petition for review to the Board of
Immigration Appeals (“BIA”) and an untimely petition to our court, Ramirez-Perez
was removed to Mexico in 2002. In 2014–2016, Ramirez-Perez filed three motions
with the BIA, of which two were styled as motions to reopen and the other was styled
as a motion to reconsider. The BIA denied all three motions. Ramirez-Perez timely
appealed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review de novo the
BIA’s determination of purely legal questions and claims of due process violations
in removal proceedings. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.), as
amended (Nov. 25, 2003). We review the BIA’s denial of motions to reopen and
reconsider for abuse of discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002). “The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or
contrary to the law,’” or “fails to provide a reasoned explanation for its actions.”
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (internal citations
omitted).
1. In July 2014, Ramirez-Perez filed the first motion to reopen, alleging his
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previous counsel, Kevin Bove, failed to render effective assistance in preparation
for, during, and on appeal from his 1999 merits hearing. Ramirez-Perez argues that
Bove’s failure to respond to his phone calls or prepare him to testify at the hearing,
his inadequate questioning during the hearing, and his failure to obtain documentary
evidence fell well below the standard of effective assistance, violating his Fifth
Amendment right to due process. At the 1999 merits hearing, the record shows that
Bove did not introduce records that established when Ramirez-Perez arrived in the
United States; did not provide documentary evidence, such as a DNA test,
supporting affidavits, or records of child support payments to establish Ramirez-
Perez’s paternity of his U.S. citizen child; and did not address hardship to the U.S.
citizen child, including the fact that Ramirez-Perez was the only living biological
parent and involved in a custody dispute with the late mother’s family. Ramirez-
Perez further alleged that Bove’s 2001 petition for review to the BIA was
“egregiously deficient” because it was just four paragraphs long and only addressed
the specifics of Ramirez-Perez’s case in footnotes.
The BIA denied the 2014 motion to reopen on two grounds, both of which
Ramirez-Perez challenges.
In the 2014 motion to reopen, Ramirez-Perez argued that the BIA should
equitably toll the deadline to file because he demonstrated due diligence during the
intervening period between his final order of removal and the filing of his motion to
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reopen. The BIA declined to equitably toll the deadline and denied the motion to
reopen. In his petition for review, Ramirez-Perez argues that this was legal error
and an abuse of discretion.
Pursuant to 8 U.S.C. § 1229a(c)(7), petitioners may file only one motion to
reopen and must do so within ninety days of a removal order, unless the deadline is
equitably tolled. “[A] petitioner is entitled to equitable tolling of the deadline during
periods when a petitioner is prevented from filing because of a deception, fraud, or
error, as long as petitioner acts with due diligence in discovering the deception, fraud
or error.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (internal quotation
omitted). The petitioner is not “require[d] . . . to act with the ‘maximum diligence
possible[,]’ only ‘due’ or ‘reasonable’ diligence.” Id. “[R]eview of petitioner’s
diligence must be fact-intensive and case-specific, assessing reasonableness . . . in
the context of his or her particular circumstances.” Id.To determine whether a petitioner has exercised due diligence sufficient to
warrant tolling in an ineffective assistance of counsel (“IAC”) case, the BIA must
consider the three Avagyan factors: (1) “if (and when) a reasonable person in
petitioner’s position would suspect the specific fraud or error underlying her motion
to reopen”; (2) “whether petitioner took reasonable steps to investigate the suspected
fraud or error, or, if petitioner is ignorant of counsel’s shortcomings, whether
petitioner made reasonable efforts to pursue relief”; and (3) “when the tolling period
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should end; that is, when petitioner definitively learns of the harm resulting from
counsel’s deficiency, or obtains vital information bearing on the existence of his
claim.” Id. (internal citations omitted).
The BIA summarily concluded that Ramirez-Perez did not exercise due
diligence sufficient to warrant equitable tolling. Despite citing to Avagyan, the BIA
did not apply the Avagyan factors. The BIA notes that Ramirez-Perez consulted
attorneys during the intervening period but did not address why this did not show
diligence. “Typically, an alien is diligent if he continues to pursue relief and relies
on the advice of counsel as to the means of obtaining that relief.” Id. Whether an
attorney detects IAC is relevant to Avagyan factor (1): “if (and when) a reasonable
person in petitioner’s position would suspect the specific fraud or error underlying
her motion to reopen.” The BIA also states that the motion to reopen was not filed
until 2014, despite the BIA issuing the final decision in 2002. However, “the length
of time does not control our equitable tolling jurisprudence.” Id. at 682 n.9. The
BIA’s failure to apply the proper legal standard for due diligence to the specific facts
of Ramirez-Perez’s case is an issue of mixed law and fact, thus constituting both an
abuse of discretion and legal error. We therefore reverse and remand for
reconsideration of the denial of the first motion to reopen on equitable tolling
grounds.
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Ramirez-Perez also contends that the BIA erred in finding that he did not
suffer prejudice from any potential IAC because he did not demonstrate that removal
would have caused exceptional or extremely unusual hardship to a qualifying U.S.
citizen relative, a requirement for cancellation of removal. He argues that the BIA
used the wrong legal standard by looking to whether a prima facie showing of
hardship was made rather than whether hardship was plausible and that IAC may
have affected the 1999 proceedings.
To succeed on a motion to reopen based on an IAC claim, a petitioner must
show that (1) his counsel’s performance was deficient and (2) this deficiency caused
prejudice. Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999); see also In re Lozada,
19 I & N Dec. 637, 638 (BIA 1988). To establish prejudice, a petitioner “only needs
to show that he has plausible grounds for relief.” Jie Lin v. Ashcroft, 377 F.3d 1014,
1027 (9th Cir. 2004) (citation omitted). “While the prima facie standard is proper
for a regular motion to reopen, it is higher than the standard required here.”
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). The BIA should
ask “only whether [counsel’s] deficient performance may have affected the
proceedings,” not “whether petitioner[] would win or lose [his] claim.” Id. at 859.
The BIA denied the motion to reopen in part because it decided Ramirez-
Perez did not suffer prejudice from the alleged IAC. Finding the prejudice
requirement was not met, the BIA did not reach the deficiency of performance
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requirement. Regarding prejudice, without any analysis of the facts of Ramirez-
Perez’s case, the BIA found that he did not demonstrate that he could have met the
hardship requirement for cancellation of removal at his 1999 merits hearing, and that
he cannot now make a prima facie showing of hardship. This was legal error.
Ramirez-Perez need only show that he has plausible grounds for relief, Jie Lin, 377
F.3d at 1027, and deficient performance by counsel affected the underlying
proceeding, Maravilla Maravilla, 381 F.3d at 859. He need not make a prima facie
showing that he would now qualify for relief.
We “need not conclude that [Petitioner] would win or lose on any claims, only
that his claims merit full consideration by the BIA.” Jie Lin, 377 F.3d at 1027. The
facts of Ramirez-Perez’s case, including his role as the sole surviving parent to a
U.S. citizen child and involvement in a dispute over his son’s custody, may establish
exceptional or extremely unusual hardship to his son. On remand, the BIA should
consider whether Ramirez-Perez had plausible grounds for cancellation of removal
at the time of his merits hearing and whether Bove’s alleged failures affected his
ability to establish these grounds. We therefore also reverse and remand for
reconsideration of the denial of the first motion to reopen on the BIA’s finding of no
prejudice.
2. Ramirez-Perez also filed a motion to reconsider in November 2014 and a
second motion to reopen in February 2016. Because we remand on the first motion
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to reopen, the subsequent motions are moot, with the exception of an issue pertaining
to fraud in the record of the first motion to reopen.
In the February 2016 motion, Ramirez-Perez challenges a letter filed by his
former attorney, Bove, in the BIA’s record in the first motion to reopen. After
Ramirez-Perez filed his first motion to reopen, Bove used the coversheet of Ramirez-
Perez’s current counsel, Anna Hysell, to file a response to IAC allegations with the
BIA. The BIA prohibits filings by non-parties. BIA R. 5.1. In an IAC case before
the BIA, the attorney accused of ineffective assistance may file a response to the
petitioner’s allegations by sending a letter to petitioner’s current counsel to file with
the BIA. The State Bar Court of California subsequently suspended Bove’s bar
license because of this fraudulent filing. In re Kevin Bove, Case No. 16-O-10953-
CV (State Bar Court of California, July 29, 2017).1 By using Hysell’s coversheet,
Bove was able to evade the BIA’s rule against non-party filings and submit his letter
directly to the BIA, thus depriving Ramirez-Perez of notice to respond. We thus
order the BIA to strike the letter from the record or provide Ramirez-Perez with an
opportunity to respond to the letter.
In sum, we grant the petition regarding the BIA’s denial of the first motion to
1
Ramirez-Perez filed an unopposed motion asking that we take judicial notice of
the decision of the State Bar Court of California on his complaint alleging Bove’s
fraudulent filing and the status of Bove’s license to practice law. We allow the
motion. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Bryant v.
Carleson, 444 F.2d 353, 357 (9th Cir. 1971).
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reopen (Case No. 14-73476) and remand for an equitable tolling analysis under the
Avagyan factors and a prejudice analysis consistent with this disposition. On
remand, we direct the BIA (1) to strike Bove’s fraudulent filing from the record or
provide Ramirez-Perez with an opportunity to respond to the letter; (2) to reopen the
record to permit Ramirez-Perez to supplement his motion to reopen; and (3) to allow
the parties to submit any additional information the BIA deems necessary. We
further deny as moot the petitions regarding the BIA’s subsequent decisions on
Ramirez-Perez’s motion to reconsider (Case No. 15-70589) and second motion to
reopen (Case No. 16-71695).
PETITION GRANTED in part, DENIED in part, and REMANDED.
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