Leonardo v. Holder , 394 F. App'x 423 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JAMIE ALDOS LEONARDO, JR., No. 06-74750 and 08-71518
Petitioner, Agency No. A40-464-700
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 6, 2009
San Francisco, California
Before: GOODWIN and PAEZ, Circuit Judges, and LEIGHTON,** District
Judge.
Jamie Aldos Leonardo, Jr., a native and citizen of the Philippines, petitions
for review of an order by the Board of Immigration Appeals ('BIA') denying
*
This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald B. Leighton, United States District Judge for the
Western District of Washington, sitting by designation.
his motion to reopen as untimely and dismissing his claim of ineffective assistance
of counsel. We have jurisdiction to review the BIA's denial of Petitioner's motion
to reopen, pursuant to 8 U.S.C. y 1252(a)(2)(D), because an equitable tolling
analysis presents a mixed question of law and fact and, in this case, the historical
facts are not disputed. Ghahremani v. Gonzales, 498 F.3d 993, 998-99 (9th Cir.
2007). We also have jurisdiction over Petitioner's claim of ineffective assistance
of counsel because it presents constitutional due process concerns. See Ray v.
Gonzales, 439 F.3d 582, 587 (9th Cir. 2006).
We review the BIA's denial of Petitioner's motion to reopen for an abuse of
discretion. Perez v. Muµasey, 516 F.3d 770, 773 (9th Cir. 2008). We review de
novo claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005).
The BIA's decision to deny Petitioner's motion to reopen was not supported
by substantial evidence. Petitioner's attorney engaged in deceitful conduct by
failing to file appropriate applications for relief, and Petitioner acted with due
diligence in discovering his attorney's fraudulent conduct. Thus, the BIA abused
its discretion in determining that the filing deadline for Petitioner's motion to
reopen should not be equitably tolled.
2
We further conclude that the BIA addressed the merits of Petitioner's
ineffective assistance of counsel claim, and that it erred in finding that Petitioner's
constitutional right to due process was not violated by his attorney's conduct.
Petitioner's counsel failed to file applications for relief and, therefore, provided
ineffective assistance. Further, Petitioner made a sufficient showing that he had
plausible grounds for relief in the form of withholding of removal under 8 U.S.C. y
1231(b)(3) and withholding and deferral of removal under the United Nations
Convention Against Torture ('CAT'), 8 C.F.R. yy 1208.16(c) and 1208.17(a).
Because the BIA abused its discretion in denying the motion to reopen and
erred in dismissing Petitioner's claim of ineffective assistance, we remand to the
agency for a new hearing on the merits where Petitioner may seeµ appropriate
relief from removal.
The petition for review is
GRANTED AND REMANDED.
3
FILED
Leonardo v. Holder, Nos. 06-74750, 08-71518 SEP 03 2010
MOLLY C. DWYER, CLERK
Goodwin, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. This court lacµs jurisdiction to review a removal order
for an alien convicted of an aggravated felony. 8 U.S.C. y 1252(a)(2)(C); see
Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir. 2004). Leonardo pled
guilty to violations of California Health and Safety Code y 11378 for possession
for sale of methamphetamine, an aggravated felony, because the crime involves a
trafficµing element. Cazarez-Gutierrez, 382 F.3d at 918; see Saravia-Paguada v.
Gonzales, 488 F.3d 1122, 1125-26 (9th Cir. 2007) (recognizing that conviction
under y 11378 is an aggravated felony). 'An aggravated felony on a criminal
record has worse collateral effects than a felony conviction simple. Under the
immigration statutes . . ., the Attorney General's discretion to cancel the removal
of a person otherwise deportable does not reach a convict of an aggravated
felony.' Lopez v. Gonzales, 549 U.S. 47, 50 (2006) (emphasis added). The
administrative record also contains court documentation of multiple violations of
controlled-substance laws, and the Immigration Judge ('IJ') found this by 'clear
and convincing evidence.' Conviction of an aggravated controlled-substance
felony, however, is sufficient to remove this court's jurisdiction to review
Leonardo's removal order and additionally maµes him ineligible for cancellation of
removal, asylum, and voluntary departure.
The administrative record also contains Leonardo's immigrant visa and alien
registration, on which he states that he has no spouse and further that he is single
and had 'never married,' with his sworn signature that his statements were true
and correct. Because Leonardo was married at the time, this statement was false
and constituted µnowing and deliberate fraud by Leonardo to gain entry into the
United States. On August 29, 2006, the Board of Immigration Appeals ('BIA')
dismissed Leonardo's appeal because he had abandoned his opportunity to seeµ
cancellation of removal by failing to apply by the deadline set by the IJ and
because he had an aggravated felony conviction. While he seeµs to blame his
attorney for missing filing deadlines or not filing, Leonardo's own aggravated-
felony conviction precluded relief from his removal by the BIA. Leonardo's
counsel was bad, and he was disbarred for his ineffective representation of
Leonardo and other aliens, but that is a side issue. The primary reasons for
Leonardo's warranted removal were his own actions of fraud and conviction of an
aggravated controlled-substance felony.
On January 23, 2008, Leonardo moved to reopen his removal proceedings
and faulted his attorney for ineffective representation that should qualify Leonardo
for equitable tolling of the filing date. On March 18, 2008, the BIA denied
Leonardo's untimely motion to reopen. Specifically, the BIA noted that equitable
tolling applied only if Leonardo had been prevented from filing by fraud or error
by his attorney, and Leonardo had acted with due diligence to discover such fraud
or error. The BIA stated that its comments were sufficient to alert Leonardo that
his attorney had abandoned his application for relief, specifically its August 29,
2006, decision. Consequently, Leonardo cannot claim due diligence, because he
waited more than a year after that decision to file his motion to reopen. Thus,
Leonardo's aggravated-felony drug conviction, which was the reason for his
removal, remains, and he is ineligible for relief from removal. Therefore, the BIA
did not abuse its discretion by acting 'arbitrarily, irrationally, or in a manner
contrary to law' in denying Leonardo's untimely motion to reopen his removal
proceedings. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (citation and
internal quotation marµs omitted).
Because Leonardo's aggravated-felony drug conviction precludes
withholding of removal, this court lacµs jurisdiction over his petition.
Accordingly, I dissent.