Gonzalez v. Holder ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 02 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SUSANA VIRGINIA GONZALEZ, No. 07-74351
Petitioner, Agency No. A070-778-918
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2009**
San Francisco, California
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Susana Virginia Gonzalez entered the United States and applied for asylum
in 1993. In a 2004 removal hearing, under pressure from the immigration judge,
Gonzalez’s attorney waived the asylum claim without her consent, admitting that
he was not prepared to represent the claim. The Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denied the motion to remand, concluding that counsel’s performance was not
deficient and that Gonzalez did not suffer prejudice due to changed conditions.
We have jurisdiction under 8 U.S.C. § 1252(a). We hold that Gonzalez’s
due process rights were violated by her attorney’s ineffective assistance and that
her asylum claim was prejudiced. We remand to the Board of Immigration
Appeals with instructions to remand for an asylum hearing.
Gonzalez’s attorney rendered ineffective assistance by withdrawing the
asylum claim solely because he was unprepared.1 When the immigration judge
ordered counsel to defend the asylum claim that day or waive it, the attorney
replied, “I’m not prepared today, Your Honor. We will not do it today.” An
immigration attorney renders ineffective assistance by forfeiting claims due to
failure to timely prepare for deadlines or hearings. See Lin v. Ashcroft, 377 F.3d
1014, 1025 (9th Cir. 2004); Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003).
1
Gonzalez sufficiently complied with Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988). Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) (requiring
substantial compliance). First, Gonzalez wrote to her attorney and gave him an
opportunity to respond to her allegations. Second, Gonzalez filed a complaint with
the California Bar; the complaint need not be successful. Third, Gonzalez filed a
declaration with her appeal to the Board stating that she never authorized her
attorney to withdraw her asylum claim. It was clear from the record that counsel
had agreed to represent her on the asylum claim. Counsel stated to the
immigration judge that he intended to proceed with the asylum application if the
cancellation of removal application was denied. This constitutes substantial
compliance. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002).
2
As Gonzalez’s attorney admitted that he only waived the claim because he was
unprepared, it is clear that the waiver was not “‘trial strategy,’ sound or otherwise.”
Lin, 377 F.3d at 1027. By definition, waiving the claim deprived Gonzalez of a
reasonable opportunity to present her claim. “Counsel’s unreasonable failure to
investigate and present the factual and legal basis of [Gonzalez’s] asylum claim . . .
amount[s] to ineffective assistance of counsel.” Id. at 1025.
Gonzalez has also established prejudice. The Board of Immigration Appeals
must address both possible grounds for asylum: past persecution and a well-
founded fear of future persecution. See Mendez-Gutierrez v. Ashcroft, 340 F.3d
865, 870 (9th Cir. 2003) (holding that in failing to address the petitioner’s claim of
a well-founded fear of future persecution, the Board abused its discretion). The
Board wholly failed to address whether Gonzalez could plausibly show past
persecution. Instead, the Board appeared to assume Gonzalez could establish past
persecution and relied only on changed conditions in Guatemala after the end of
the civil war. The Board stated, “[W]e do not find an adequate showing of
prejudice, as the respondent has not sufficiently established that her approximately
14 year old asylum claim has any continuing merit.” (emphasis added).
If the Board had considered past persecution, it would likely have concluded
(as it appeared to assume) that Gonzalez can plausibly show past persecution on
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the basis of political opinion. Gonzalez’s brother was killed in the Guatemala Civil
War because the guerillas forced him to desert the government’s civil defense unit.
Her father-in-law was killed by guerillas. The guerillas also threatened Gonzalez
and her husband with death for her husband’s service in the civil defense unit. Her
brother’s and father-in-law’s murders show that it was likely the death threats
would be carried out. See Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996) (“The
violence actually committed against other members of [the petitioner’s] family,
and repetition of threats to her, made her fear of violence well founded.”).
Without addressing whether Gonzalez had shown a plausible claim of past
persecution, the Board could not permissibly rely on changed country conditions in
Guatemala. Past persecution creates a presumption of a well-founded fear of
future persecution, which can only be rebutted by an individualized analysis:
“[Determining] whether . . . a particular applicant’s fear is rebutted by general
country conditions information requires an individualized analysis that focuses on
the specific harm suffered and the relationship to it of the particular information
contained in the relevant country reports. . . . Information about general changes in
the country is not sufficient.” Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000).
Where no individualized determination has been made with respect to
changed country conditions, we must usually remand to the Board for a
4
determination of whether the government has met its burden to rebut the
presumption of past persecution. See Chand, 222 F.3d at 1078. However, in this
case, remand to the immigration judge is necessary because neither we nor the
Board may take judicial or administrative notice of the effect of political changes
in a petitioner’s country without a hearing and giving the petitioner “a fair
opportunity to present evidence to the contrary.” See Gonzalez, 82 F.3d at 910–11
(“It may be that, were the petitioners given an opportunity to respond to the INS
view of the effect of the change in government, they could make no case for a well-
found fear. . . . But the agency should not have assumed away petitioners’ case.”)
(internal quotation marks omitted). Likewise, remand is necessary because
Gonzalez was never allowed to testify or elaborate as to the persecution she and
her family faced in Guatemala, and the immigration judge never determined
whether Gonzalez was credible. Most importantly, Gonzalez was not given the
chance to show that the danger to her remains despite the end of the Guatemala
Civil War. “Remand [to the immigration judge] is generally necessary when an
alien is prevented from reasonably presenting her case or when an IJ’s actions
prevent the introduction of significant testimony.” Cruz Rendon v. Holder, 603
F.3d 1104, 1109 (9th Cir. 2010).
5
The petition for review is GRANTED, and we REMAND the case to the
BIA with instructions to remand to the IJ for an asylum hearing.
6