Granados-Osegura v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIANO GRANADOS-OSEGUERA, 
Petitioner, No. 03-73030
v.
 Agency No.
A91-692-353
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 17, 2006—Pasadena, California
Filed September 25, 2006
Before: Betty B. Fletcher, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Callahan
11915
11918 GRANADOS-OSEGUERA v. GONZALES
COUNSEL
Mary Beth Canty, Laura Boyle, Josh Chetwynd, Law Stu-
dents, Tucson, Arizona, argued the case for the petitioner;
GRANADOS-OSEGUERA v. GONZALES 11919
Willie M. Jordan-Curtis, Ph.D., J.D., Esq, Assistant Dean for
Student Affairs and Associate Clinical Professor of Law, The
University of Arizona, Rogers College of Law, Pro Bono
Appellate Project, Tucson, Arizona, was on the briefs for the
petitioner.
Arthur L. Rabin, Department of Justice, Washington, D.C.,
argued the case for the respondent; Peter D. Keisler, Assistant
Attorney General, Michelle Gorden Latour, Assistant Direc-
tor, Linda S. Wendtland, Assistant Director, and Cindy S. Fer-
rier, Senior Litigation Counsel, Washington, D.C., were on
the briefs for the respondent.
OPINION
B. FLETCHER, Circuit Judge:
I.
Mariano Granados-Oseguera petitions for review of the
Board of Immigration Appeals’ (BIA’s) affirmance of an
Immigration Judge’s (IJ’s) denial of cancellation of removal
as well as the BIA’s denial of his motion to reopen proceed-
ings to allow him to apply for adjustment of status.
We deny Granados-Oseguera’s petition as to his equal pro-
tection claim based on a claim of disparate treatment of differ-
ent classes of aliens; it does not violate Petitioner’s equal
protection rights to treat aliens permitted voluntarily to depart
differently from aliens not eligible for voluntary departure
with respect to the amount of time in which they may file a
motion to reopen proceedings.1 De Martinez v. Ashcroft, 374
1
Granados-Oseguera also challenges the BIA’s affirmance of the IJ’s
decision without opinion and the IJ’s hardship determination. We are
without jurisdiction to consider either of these issues as Petitioner did not
11920 GRANADOS-OSEGUERA v. GONZALES
F.3d 759, 764 (9th Cir. 2004). We grant Granados-Oseguera’s
petition as to the BIA’s denial of his motion to reopen pro-
ceedings and as to his ineffective assistance of counsel (IAC)
claim — the two are related. In the limited situation where an
alien is represented by the same allegedly incompetent coun-
sel throughout agency proceedings including through the fil-
ing of his motion to reopen proceedings before the BIA and
therefore cannot administratively exhaust2 a claim for ineffec-
tive assistance of counsel, we have jurisdiction to review the
denial of the motion to reopen. We will review to determine
whether the denial of effective counsel rises to the level of a
due process violation and was prejudicial. Here, Petitioner’s
counsel failed to file a petition for review or a motion to
reopen proceedings within the 30-day voluntary departure
period; counsel knew or should have known that Petitioner
would be barred from relief if he failed timely to file the peti-
tion or motion; these failings occurred despite the fact that
counsel received several warnings and notices from the IJ as
to the consequences of Petitioner failing to depart within that
30-day period; further, these failures occurred despite clear
case law holding that motions to reopen filed after the volun-
tary departure period had expired would be denied as
untimely and tardy petitions for review would be dismissed
by this court. Ray v. Gonzales, 439 F.3d 582, 586-89 (9th Cir.
2006); Shaar v. INS, 141 F.3d 953, 956 (9th Cir. 1998).
petition for review within 30 days of the BIA’s affirmance. 8 U.S.C.
§ 1252(b)(1); see Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.
1996) (holding that we do not have jurisdiction to consider the underlying
final order upon petition for review of a motion to reopen where the peti-
tioner did not earlier seek review of that underlying final order). Further-
more, we have upheld the BIA’s authority to affirm without opinion.
Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003). We are
also without jurisdiction to review the IJ’s determination that Petitioner’s
daughter would not suffer exceptional and extremely unusual hardship
upon his removal. Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.
2003). We therefore dismiss these portions of the petition for review.
2
The INA permits the filing of only one motion to reopen.
GRANADOS-OSEGUERA v. GONZALES 11921
Accordingly, we remand for the BIA to reconsider the motion
to reopen in light of Petitioner’s ineffective assistance of
counsel allegations, which it has not yet had an opportunity
to consider.
II.
Mariano Granados-Oseguera is a citizen of Mexico. He
entered the United States without inspection as a sixteen-year
old around June 6, 1984. He is married and has two United
States citizen children, ages seventeen and six. On August 16,
1993, Granados-Oseguera filed an application for asylum.
That application was referred to the Immigration Court on
September 24, 1997, following an interview with an INS offi-
cer. The INS issued a notice to appear the following day,
charging that Granados-Oseguera was subject to removal
under section 212(a)(6)(A)(i) of the Immigration and Natural-
ization Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), for having
entered the United States without having been admitted or
paroled. Petitioner appeared with counsel before an Immigra-
tion Judge on April 29, 1998, conceded removability, and
applied for cancellation of removal. He appeared again before
the IJ on August 10, 1999. At this hearing, his counsel sought
an extension because she had lost Petitioner’s case file; appar-
ently, counsel’s secretary had left, taking three case files with
her. The IJ questioned Granados-Oseguera about his interac-
tions with his counsel leading up to his hearing, and it became
clear that Granados-Oseguera had spoken only with his coun-
sel’s secretary, never with counsel. The IJ continued
Granados-Oseguera’s hearing until January 23, 2001, permit-
ting counsel to file an application for cancellation of removal.
Following the January 23, 2001 hearing, the IJ found that
Granados-Oseguera satisfied two of the requirements for can-
cellation of removal: 10-years continuous physical presence
in the United States and good moral character. However, the
IJ found that Granados-Oseguera had not shown that his qual-
ifying relative, his U.S. citizen daughter, would face excep-
11922 GRANADOS-OSEGUERA v. GONZALES
tional and extremely unusual hardship if he were removed
from the United States. On that basis, the IJ denied Granados-
Oseguera’s application for cancellation of removal, granting
him thirty days in which voluntarily to depart. The IJ notified
Petitioner’s counsel that if Petitioner failed to depart during
his voluntary departure period, he would forfeit any opportu-
nity to return to the United States for ten years.
On February 22, 2001, Granados-Oseguera filed a timely
notice of appeal of the IJ’s decision to the BIA. A few months
later, on April 27, 2001, Granados-Oseguera applied for a
labor certification from the Department of Labor. The BIA
summarily affirmed the IJ’s decision on September 6, 2002
and permitted Granados-Oseguera voluntary departure, setting
his departure date for October 6, 2002. The BIA noted in its
order that failure to depart during the 30-day period would
undermine any chance for re-entry for ten years.
Granados-Oseguera’s counsel failed to petition this court
for review of the BIA’s summary affirmance, making the IJ’s
decision a final order of removal and finalizing Petitioner’s
departure date for October 6, 2002. Caring for his sick daugh-
ter and father, Granados-Oseguera did not depart within his
voluntary departure period. His counsel never sought an
extension on his behalf to argue exceptional circumstances.
Instead, Granados-Oseguera’s counsel filed a motion to
reopen his removal proceedings a couple of months later, on
December 6, 20023 so that Granados-Oseguera could seek
adjustment of status under 8 U.S.C. § 1255(i) based on his
application for labor certification. Granados-Oseguera’s coun-
sel supplemented the December 6, 2002 motion with proof
that the Department of Labor had approved Petitioner’s appli-
cation for labor certification on December 12, 2002 and that
3
Although December 6, 2002 is 91 days after September 6, 2002 when
the BIA denied Petitioners’s appeal, the BIA accepted the motion as
timely because the one-day delay in filing was the result of inclement
weather.
GRANADOS-OSEGUERA v. GONZALES 11923
Petitioner had filed a Form I-140, Petition for Alien Worker,
with the Immigration and Naturalization Service (INS). In
response to the government’s argument that Granados-
Oseguera was barred from filing a motion to reopen by his
failure to depart voluntarily within his prescribed period,
Granados-Oseguera’s counsel filed a reply brief explaining
his failure to depart based on his father’s and daughter’s ill-
nesses, claiming exceptional circumstances. However, coun-
sel had failed to seek an extension of the voluntary departure
period on this basis.
The BIA denied Petitioner’s motion to reopen proceedings
on July 23, 2003, in part because the IJ and BIA had given
Granados-Oseguera through his counsel “notice of the conse-
quences of failure to depart.” Denial of Motion to Reopen
(July 23, 2003).
On August 22, 2003, Granados-Oseguera filed a pro se,
timely petition for review from the BIA’s denial of his motion
to reopen. Through this court’s Pro Bono Representation Proj-
ect, Granados-Oseguera was appointed counsel. We review
the BIA’s decision for an abuse of discretion. Singh v. Ash-
croft, 367 F.3d 1182, 1185 (9th Cir. 2004).
III.
A. Petitioner’s Equal Protection Claim
Granados-Oseguera argues that his equal protection rights
have been violated because aliens who are not granted volun-
tary departure may employ the full 90-day period to file a
motion to reopen, while aliens granted voluntary departure
have only 30 to 60 days to file their motions to reopen.4 He
4
The relevant statutory provisions provide that a “motion to reopen shall
be filed within 90 days of the date of entry of a final administrative order
of removal,” 8 U.S.C. § 1229a(7)(C)(i), and that the maximum voluntary
departure period is 60 days, 8 U.S.C. § 1229c(b)(2).
11924 GRANADOS-OSEGUERA v. GONZALES
contends that this disparate treatment constitutes an equal pro-
tection violation. We disagree.
Although aliens are entitled to the benefits of the Equal
Protection Clause, Perez-Oropeza v. INS, 56 F.3d 43, 44 (9th
Cir. 1995), Congress has broad authority over the “admission
and expulsion of aliens.” Shaar v. INS, 141 F.3d 953, 958 (9th
Cir. 1998) (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977)).
Interpreting this broad authority, we have held that a statute
limiting relief available to certain classes of aliens must be
“wholly irrational” to violate equal protection standards. De
Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004) (quot-
ing Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-64
(9th Cir. 2002)); Perez-Oropeza, 56 F.3d at 45. Petitioner
bears the “burden to negate ‘every conceivable basis which
might support [a legislative classification] . . . whether or not
the basis has a foundation in the record.’ ” Id. (quoting Heller
v. Doe, 509 U.S. 312, 320-21 (1993)) (alteration in original).
[1] Granados-Oseguera cannot meet this burden since we
have upheld the very distinction he challenges here. In De
Martinez, we held that treating those aliens permitted volun-
tary departure differently, with respect to the window for fil-
ing a motion to reopen, from those not granted voluntary
departure is not irrational. We noted a potential legitimate
purpose for these different deadlines: “it is less costly and
more humane to allow responsible aliens to depart voluntarily
without the stigma of being forcibly removed from the United
States.” 374 F.3d at 764. In denying this claim, we simply
apply binding circuit precedent.
B. Petitioner’s Motion to Reopen Proceedings and
Ineffective Assistance of Counsel Claim
Petitioner raises his claim of ineffective assistance of coun-
sel for the first time in his petition for review to this court.
Nonetheless, we conclude we may review it since it is his first
opportunity to raise it, and the claim asserts a due process vio-
GRANADOS-OSEGUERA v. GONZALES 11925
lation. Accordingly, we remand to the BIA to reconsider the
motion to reopen in light of Granados-Oseguera’s IAC claim.
[2] The general rule that “administrative remedies be
exhausted does not preclude” petitioners from raising due pro-
cess claims where those claims are not based on procedural
errors that the BIA could have corrected.5 Bagues-Valles v.
INS, 779 F.2d 483, 484 (9th Cir. 1985). Ineffective assistance
of counsel in a deportation proceeding rises to the level of a
due process violation where the proceeding was “so funda-
mentally unfair that the alien was prevented from reasonably
presenting his case.” Castillo-Perez v. INS, 212 F.3d 518,
526-27 (9th Cir. 2000) (quoting Lopez v. INS, 775 F.2d 1015,
1017 (9th Cir. 1985)). Thus, we have jurisdiction over a class
of IAC claims asserted for the first time in a petition for
review, even if they have not been exhausted.
[3] Granados-Oseguera’s IAC claim falls into this class —
he asserts an IAC claim that rises to the level of a due process
violation. To establish a valid due-process IAC claim,
[A]n alien must . . . clear several hurdles, both sub-
stantive and procedural. First, the alien must demon-
strate that the attorney’s deficient performance was
prejudicial. “Where an alien is prevented from filing
an appeal in an immigration proceeding due to coun-
sel’s error, the error deprives the alien of the appel-
late proceeding entirely.” In cases involving such
error, the proceedings are subject to a “presumption
5
We distinguish two types of cases from this case: those where, without
excuse, no motion to reopen was ever filed, e.g., Liu v. Waters, 55 F.3d
421, 424 (9th Cir. 1995); Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.
1994), and those where a motion to reopen was filed by new counsel. E.g.,
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1122 (9th Cir. 2000). Here,
Granados-Oseguera was represented by the same counsel throughout his
proceedings before the agency, foreclosing all opportunity to argue to the
BIA the defalcations of his counsel. The dissent fails to recognize this dis-
tinction.
11926 GRANADOS-OSEGUERA v. GONZALES
of prejudice,” and we will find that a petitioner has
been denied due process if he can demonstrate “plau-
sible grounds for relief” on his underlying claim.
Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (internal
citations omitted).6
[4] Ray also clearly explains the procedural hurdles.
In Matter of Lozada, 9 I. & N. Dec. 637 (BIA 1988),
the BIA held that an alien alleging ineffective assis-
tance of counsel must: (1) submit an affidavit dem-
onstrating and explaining his agreement with prior
counsel regarding legal representation, (2) submit
evidence that he has informed prior counsel of the
allegations of ineffective assistance and provided the
attorney with an opportunity to respond, and (3) file
a complaint against the attorney with proper disci-
plinary authorities or explain why such a complaint
has not been filed.
Ray, 439 F.3d at 587-88.
[5] While these so-called Lozada requirements help to pro-
vide notice and “ensur[e] that a legitimate claim actually
exists,” id. at 588, they “are not sacrosanct.” Id. (quoting
Castillo-Perez, 212 F.3d at 525). In fact, “we have not hesi-
tated to address ineffective assistance of counsel claims even
when an alien fails to comply strictly with Lozada” where the
record shows a “clear and obvious case of ineffective assis-
tance.” Id.; Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th
6
The dissent relies on Ray as requiring Granados-Oseguera, through
new counsel, to seek reopening before the Board. However, new counsel,
recognizing the numerical bar imposed by the BIA, instead sought relief
in our court. We note also that this case was pre-Ray. We decline to
require counsel to violate the numerical rule and to anticipate that a nar-
row exception to the rule might be recognized. We conclude that exhaus-
tion before the agency in this case is not required.
GRANADOS-OSEGUERA v. GONZALES 11927
Cir. 2002); Castillo-Perez, 212 F.3d at 525 n.11; Escobar-
Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000). This is
such a case.
The substantive hurdle is surmounted in this case, and prej-
udice is clear. Also clear is the record of ineffective assistance
by counsel, so that, despite the fact that the Lozada require-
ments have not yet been satisfied,7 we may find that
Granados-Oseguera has established a due process IAC claim.
[6] Granados-Oseguera received such poor counsel that he
was “prevented from reasonably presenting his case,” thereby
denying him due process. Lopez, 775 F.2d at 1017. Counsel
failed to petition for review of the BIA’s summary affir-
mance, forfeiting permanently his client’s opportunity to chal-
lenge the underlying order of removal. Then, counsel failed to
seek an extension of his client’s voluntary departure period
when his client’s daughter and father fell ill and required his
care. After failing to seek an extension, counsel then failed to
file a motion to reopen within Petitioner’s 30-day voluntary
departure period where counsel knew or should have known
that Petitioner would be barred from relief if he failed to file
within the 30-day departure period. The record is also abso-
lutely clear that counsel received notice several times, from
the IJ directly in court followed by written notice after the IJ’s
decision; written notice also followed the BIA’s affirmance of
the IJ, warning of the consequences if Petitioner failed to
depart within his 30-day window. In addition, case law at the
time was clear that motions to reopen filed after the voluntary
departure period had expired would be denied as untimely.
Shaar, 141 F.3d at 956.
[7] There is also no doubt that these failures by his counsel
were prejudicial to Granados-Oseguera’s claim. The BIA
denied his motion to reopen for procedural reasons — it was
7
However, as a condition of reconsideration, the BIA may require com-
pliance with Lozada.
11928 GRANADOS-OSEGUERA v. GONZALES
filed well outside of his 30-day voluntary departure period.
This untimeliness was the direct result of the inadequacy of
Petitioner’s counsel. The government has not rebutted this. In
a similar case, we held that the petitioner’s efforts to seek
adjustment of status, particularly in the wake of the Depart-
ment of Labor’s approval of his labor certification provide
“plausible ground for relief.” Ray, 439 F.3d at 588 (quoting
United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086
(9th Cir. 1996)). The BIA could “plausibly” have found that
Granados-Oseguera was eligible for the relief sought — an
opportunity to seek adjustment of status in light of his pend-
ing labor certification, particularly following the Department
of Labor’s approval of his application in December, 2002. We
thus find that his counsel’s inadequate performance was prej-
udicial.
[8] Because the BIA has not yet had the opportunity to con-
sider Granados-Oseguera’s claim of ineffective assistance of
counsel and his request for adjustment of status, we are reluc-
tant to “rule on the merits of an issue that the BIA has not
itself addressed.” Ray, 439 F.3d at 591. To remedy an other-
wise intractable injustice, we grant Granados-Oseguera’s peti-
tion for review, and remand this case to the BIA to reconsider
Granados-Oseguera’s motion to reopen in light of his IAC
claim.
PETITION GRANTED, in part; DISMISSED, in part;
DENIED, in part.
CALLAHAN, Circuit Judge, dissenting:
I concur with my colleagues’ rejection of Granados-
Oseguera’s equal protection claim. I must dissent, however,
from their expansion of our jurisdiction — in contravention of
our precedents — to reach an ineffective assistance of counsel
claim that has never been raised before the Board of Immigra-
GRANADOS-OSEGUERA v. GONZALES 11929
tion Appeals (BIA) and is not supported by substantial evi-
dence.
On September 6, 2002, the BIA summarily affirmed the
IJ’s decision denying Granados-Oseguera’s application for
cancellation of removal. The IJ allowed him 30 days in which
to voluntarily depart the country, and warned that his failure
to depart would undermine any chance he might have of re-
entry for ten years. The petitioner did not depart the country
within the allotted time. He did not file anything with the
BIA, or any court until December 6, 2002, when he filed a
motion to reopen with the BIA “so that he could continue to
apply for labor certification in the United States.” His supple-
ment to the motion to reopen requested that his failure to
leave the country be excused because his father and daughter
became ill during the period for voluntary departure. On July
23, 2003, the BIA denied the motion to reopen holding that
the petitioner’s failure to voluntarily depart barred him from
the requested relief. The petitioner did not assert ineffective
assistance of counsel before the BIA and no such contention
is mentioned in the BIA’s order.
We have explicitly held that an ineffective assistance of
counsel claim in an immigration case must first be raised in
the form of a motion to reopen before the BIA:
We generally will not consider a claim of error that
the BIA has not first been given the opportunity to
correct because to do so deprives us of the benefit of
the agency’s expertise and a fully developed record.
See Roque-Carranza v. INS, 778 F.2d 1373, 1374
(9th Cir. 1985). We therefore require an alien who
argues ineffective assistance of counsel to exhaust
his administrative remedies by first presenting the
issue to the BIA. See id.; see also Liu v. Waters, 55
F.3d 421, 426 (9th Cir. 1995).
Ontiveros-Lopez filed his first petition before he
properly exhausted his ineffective assistance of
11930 GRANADOS-OSEGUERA v. GONZALES
counsel claim before the BIA. The first petition
appeals the BIA’s affirmance of the deportation
order based on his prior counsel’s concession of
Ontiveros-Lopez’s deportability and his statutory
ineligibility for relief. While we could review that
ruling for its soundness, Ontiveros-Lopez instead
urges us to grant relief on the basis of ineffective
assistance of counsel. This we cannot do. Ontiveros-
Lopez’s direct appeal of the IJ’s deportation order to
the BIA did not present ineffective assistance of
counsel as a ground for relief, and the BIA did not
have the opportunity to develop a record and pass on
the issue. We therefore deny the first petition for its
failure to satisfy the administrative exhaustion
requirement.
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000).
Thus, as Granados-Oseguera filed his petition for review “be-
fore he properly exhausted his ineffective assistance of coun-
sel claim before the BIA,” we should deny the petition “for
its failure to satisfy the administrative exhaustion require-
ment.” Id.
The majority seeks to avoid this conclusion by contending
that the petition for review is Granados-Oseguera’s first
opportunity to raise his ineffective assistance of counsel claim
and that the claim asserts a due process violation. Neither rea-
son justifies the majority’s expansion of our jurisdiction. It
makes little sense to suggest that the exhaustion of adminis-
trative remedies requirement does not apply whenever a peti-
tioner alleges that he could not have raised it before the
agency. This is particularly true where, as here, the alleged
inability was not the result of any agency action or rule, but
because petitioner continued to be represented by the same
attorney.
The majority’s perspective is inconsistent with our opinion
in Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006). In that case,
GRANADOS-OSEGUERA v. GONZALES 11931
Ray filed a first and then a second motion to reopen with the
BIA alleging that he was the victim of ineffective assistance
of counsel. Id. at 584-85. The BIA denied Ray’s second
motion as untimely and numerically barred. Id. at 586. On the
petition for review from the denial of his second motion, we
held that because “Ray was denied due process as a result of
his attorney’s deficient and detrimental performance, . . . the
BIA abused its discretion by refusing to toll the numerical and
procedural bars to his second motion,” Id. at 590.1 If a peti-
tioner may file another motion to reopen before the BIA, we
need not be concerned with his alleged inability to raise the
issue before the BIA in a prior proceeding.2
Our opinion in Ray also reveals the majority’s assertion —
that we have jurisdiction because the petitioner alleges a vio-
lation of due process — would eviscerate our requirement that
an ineffective assistance of counsel claim must be first
asserted before the BIA. In Ray, we wrote:
Federal law guarantees an alien the right to obtain
counsel of his own choice in “any removal proceed-
ings before an immigration judge,” 8 U.S.C. §1362,
1
Moreover, Dearinger v. Volkova, 232 F.3d 1042, (9th Cir. 2000),
which was cited in Ray, suggests that despite the passage of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, an alien
may file a habeas petition alleging ineffective assistance of counsel in his
or her immigration proceedings. Id. at 1044; see also Hernandez v. Reno,
238 F.3d 50, 55 (1st Cir. 2000) (holding that a district court had jurisdic-
tion to consider a habeas petition alleging ineffective assistance of counsel
in an immigration proceeding when the petitioner is threatened with
immediate deportation). But see Goonsuwan v. Ashcroft, 252 F.3d 383,
388 (5th Cir. 2001) (holding that the petitioner’s “failure to raise his inef-
fective assistance of counsel claim before the BIA deprived the district
court of jurisdiction to hear the issue”).
2
Although I do not agree with the majority’s reasoning in footnote 6 that
because “this case was pre-Ray” petitioner may allege ineffective assis-
tance of counsel for the first time in his petition before this court, I read
the distinction as questioning the application of the majority’s assertion of
jurisdiction in this case to any post-Ray case.
11932 GRANADOS-OSEGUERA v. GONZALES
and we have explained that this statutory provision
stems from a constitutional guarantee of due process,
see Rios-Berrios v. INS, 776 F.2d 859, 862 (1985).
See also Iturribarria v. INS, 321 F.3d 889, 899 (9th
Cir. 2003) (“In deportation proceedings, an alien’s
right to be represented by counsel is based on the
due process guarantees of the Fifth Amendment.”).
Further, this Circuit has long recognized that an
alien’s due process right to obtain counsel in immi-
gration matters also includes a right to competent
representation from a retained attorney. Because due
process requires more than the formal availability of
counsel, we have held that an alien is denied due
process when his attorney provides ineffective assis-
tance. See, e.g., Rodriguez-Lariz v. INS, 282 F.3d
1218, 1226-27 (9th Cir. 2002); Castillo-Perez v. INS,
212 F.3d 518, 525-26 (9th Cir. 2000); see also Lopez
v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985). “Inef-
fective assistance of counsel in a deportation pro-
ceeding is a denial of due process under the Fifth
Amendment if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably
presenting his case.” Lopez, 775 F.2d at 1017.
439 F.3d at 587 (emphasis in original). It follows that creating
an exception for a due process claim would obliterate the rule
that an ineffective assistance of counsel claim must first be
raised before the BIA.3
3
The majority’s citation of Bagues-Valles v. INS, 779 F.2d 483, 484 (9th
Cir. 1985), cannot vitalize its argument on jurisdiction. In that case, peti-
tioners did not advance an ineffective assistance of counsel claim. Instead
the petition for review advanced due process and retroactivity issues that
had not been raised in the administrative proceedings. Id. at 484. Nonethe-
less, we addressed the arguments, and rejected them on the merits, noting
that the BIA had no jurisdiction to adjudicate petitioners’ constitutional
issues, and the due process claims did not concern procedural errors cor-
rectable by the BIA. Id. Furthermore, the scope of the ambiguous state-
ment concerning jurisdiction in Bagues-Valles is limited by our clear
statement in Ontiveros-Lopez concerning our jurisdiction to review inef-
fective assistance of counsel claims. 213 F.3d at 1124.
GRANADOS-OSEGUERA v. GONZALES 11933
Moreover, the majority’s approach to Granados-Oseguera’s
claim places the proverbial cart before the horse by conclud-
ing that we have jurisdiction before examining the factual
basis for the claim. In Ray, we recognized that a claim of inef-
fective assistance of counsel could be a valid basis for a
motion to reopen. Id. at 585. However, Ray had raised his
claim before the BIA. Furthermore, we determined that Ray
had made a persuasive and factually supported claim of inef-
fective assistance before remanding to the BIA.4 The majority
here, however, fails to hold petitioner to the evidentiary stan-
dard that underlies our decision in Ray, a standard designed
to guard against petitioners making unsupported claims of
ineffective assistance of counsel.
We have reiterated that in Matter of Lozada, 19 I. & N.
Dec. 637 (BIA 1988), the BIA held:
[A]n alien alleging ineffective assistance of counsel
must: (1) submit an affidavit demonstrating and
explaining his agreement with prior counsel regard-
ing legal representation, (2) submit evidence that he
has informed prior counsel of the allegations of inef-
fective assistance and provided the attorney with an
opportunity to respond, and (3) file a complaint
against the attorney with proper disciplinary authori-
ties or explain why such a complaint has not been
filed.
Ray, 439 F.3d at 588-89. We have consistently endorsed the
Lozada requirements, while recognizing that they are not sac-
rosanct. In Castillo-Perez, we noted first “that the Lozada
requirements are generally reasonable, and under ordinary cir-
cumstances the BIA does not abuse its discretion when it
4
We noted that Ray’s attorneys “prevented Ray not only from ‘reason-
ably presenting his case,’ but from presenting his case at all,” and that Ray
had “also fully satisfied the Lozada requirements.” 439 F.3d at 588-89
(emphasis in original).
11934 GRANADOS-OSEGUERA v. GONZALES
denies a motion to remand or reopen based on alleged ineffec-
tive assistance of counsel where the petitioner fails to meet
the requirements of Lozada.” 212 F.3d at 525. We then stated
that a failure to comply with the Lozada requirements is not
necessarily fatal where the facts showing ineffective assis-
tance of counsel are “plain on the face of the administrative
record.” Id. (citing Escobar-Grijalva v. INS, 206 F.3d 1331,
1335 (9th Cir. 2000)). Also, in Rodriguez-Lariz v. INS, 282
F.3d 1218, 1226-27 (9th Cir. 2002), we reiterated our state-
ment in Castillo-Perez that the Lozada requirements are “in-
tended to ensure both that an adequate factual basis exists in
the record for an ineffectiveness complaint and that the com-
plaint is a legitimate and substantial one.” 212 F.3d at 526.
The majority, however, attempts to brush aside the Lozada
requirements by stating that we have not insisted on strict
compliance with these requirements where the record shows
a “clear and obvious case of ineffective assistance of coun-
sel.” This overstatement of our precedent fails to appreciate
the difference between strict compliance with Lozada and
making no attempt to procure the information provided by the
Lozada requirements.5 In our case, the claim of ineffective
assistance of counsel is not clear on the face of the adminis-
trative record. Instead, this case illustrates that without evi-
dence of a petitioner’s actual relationship with his attorney
5
The three cases cited by the majority either do not support dispensing
with the Lozada requirements, or turn on the existence of information —
that would otherwise be furnished by complying with Lozada — in the
administrative records. In Rodriguez-Lariz, we noted that petitioner had
“substantially complied with the Lozada factors.” 282 F.3d at 1227. In
Castillo-Perez, we excused formal compliance with the Lozada require-
ments, noting that “the record of the proceedings themselves is more than
adequate to serve those functions” and “there has been substantial compli-
ance with the rule.” 212 F.3d at 526. The third case, Escobar-Grijalva, is
inapposite as it concerned an IJ forcing a petitioner to be represented by
an attorney she had never met. We held that the BIA’s “reasonable rules
for the normal ineffective assistance claim” were not dispositive because
the “facts are plain on the face of the administrative record” and there was
no need of an affidavit to establish them. 206 F.3d at 1335.
GRANADOS-OSEGUERA v. GONZALES 11935
(the type of information provided by the Lozada require-
ments) there is no factual basis for the claim of ineffective
assistance of counsel.
The pro se petition before us seeks review of the BIA’s
denial of the petitioner’s motion to reopen, which was based
on his application for a labor certificate. It was only when
new counsel was appointed to represent the petitioner that an
allegation of ineffective assistance of counsel was put for-
ward. Although the record contains no evidence concerning
Granados-Oseguera’s actual relationship and communications
with his attorney in September 2002, the majority perceives
a clear case of ineffective assistance of counsel from the fol-
lowing cold facts: (1) on September 6, 2002, the BIA summa-
rily affirmed the IJ’s decision, allowed the petitioner 30 days
in which to voluntarily depart the country, and warned him
that his failure to depart would undermine any chance of re-
entry for ten years, and (2) the petitioner did not, within those
30 days, depart the country or seek relief from either the BIA
or a court. The majority concludes that the consequences of
Granados-Oseguera’s failure to depart and failure to file a
petition or motion are so draconian that the only possible
explanation must be ineffective assistance by the attorney.
Although such speculation may explain Granados-
Oseguera’s inaction, there are many other possible explana-
tions.6 What is missing is any evidence addressing at least the
first two Lozada requirements. What agreement (if any) did
Granados-Oseguera have with his attorney during the critical
30-day period for departure? Has the petitioner’s former attor-
ney been informed of the allegation and what explanation, if
6
Although it is no less speculative than the majority’s conclusion,
another explanation — which is consistent with the filings in this case —
is that Granados-Oseguera intended to depart within the 30 days, but did
not do so because of his father’s and daughter’s illnesses (this is what he
claimed in his motion to reopen filed with the BIA), and did not contact
his attorney.
11936 GRANADOS-OSEGUERA v. GONZALES
any, does he have for his alleged inaction? As there is no evi-
dence before us concerning the actual relationship (or lack
thereof), there is no factual basis for Granados-Oseguera’s
claim of ineffective assistance of counsel.
I recognize that despite its conviction as to Granados-
Oseguera’s claim, the majority refrains from ruling on the
claim, and remands the matter to the BIA for a ruling on its
merits. I also note that the majority concedes that the BIA
may require that the petitioner’s claim of ineffective assis-
tance of counsel address the Lozada factors. Nonetheless, as
the majority contravenes controlling precedent by expanding
our jurisdiction to cover an issue not raised before the BIA
and not factually supported, I respectfully dissent.