Alfredo Salazar-Gonzalez v. Loretta E. Lynch , 798 F.3d 917 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO SALAZAR-GONZALEZ, No. 11-73600
AKA Alfredo Salazar-Gonzales,
Petitioner, Agency No.
A094-965-975
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 20, 2015*
San Francisco, California
Filed August 20, 2015
Before: Sidney R. Thomas, Chief Judge and M. Margaret
McKeown and William A. Fletcher, Circuit Judges.
Opinion by Judge McKeown
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SALAZAR-GONZALEZ V. LYNCH
SUMMARY**
Immigration
The panel granted Alfredo Salazar-Gonzalez’s petition for
review of the Board of Immigration Appeals’ decision that he
was not entitled to equitable tolling of his untimely motion to
reopen on the basis of ineffective assistance of counsel.
The panel held that a lawyer’s advice to an alien to forfeit
his right of appeal to the BIA and leave the United States to
apply for a visa for which he was statutorily ineligible was
not a reasonable tactical decision. The panel held that the
BIA abused its discretion by so characterizing counsel’s
?patently erroneous and legally dead wrong advice.”
Concluding that petitioner was entitled to equitable tolling
because he demonstrated that his counsel performed
deficiently and he was prejudiced, the panel remanded with
instructions to grant reopening.
COUNSEL
Carolyn Chapman, Law Office of Carolyn Chapman, San
Diego, California, for Petitioner.
Stefanie A. Svoren-Jay, Trial Attorney, and John S. Hogan,
Senior Litigation Counsel, Office of Immigration Litigation,
Washington, D.C.; Stuart F. Delery, Acting Assistant
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SALAZAR-GONZALEZ V. LYNCH 3
Attorney General, Civil Division, United States Department
of Justice, Washington, D.C., for Respondent.
OPINION
McKEOWN, Circuit Judge:
Sometimes, it is difficult to distinguish between a client’s
bad luck and a lawyer’s bad advice. Risk is an inherent part
of litigation, and lawyers must weigh countless probabilities
when advising their clients on what claims to pursue, motions
to file, and arguments to raise. This case, however, involves
no dynamic assessment of risk: Salazar-Gonzalez’s lawyer
advised him to pursue a form of immigration relief that
Salazar-Gonzalez was statutorily ineligible to receive.
Steering a client into such a dead-end is not a “tactical
decision[],” as the Board of Immigrations Appeals put it. It
is ineffective assistance of counsel. Although we have
observed that “[a] lawyer is often the only person who could
thread the labyrinth” of the immigration laws, Castro-O’Ryan
v. I.N.S., 847 F.2d 1307, 1312 (9th Cir. 1988), that
observation breaks down when the lawyer does not know the
way. We grant the petition and remand with instructions to
grant the motion to reopen.
BACKGROUND
Alfredo Salazar-Gonzalez1 is a native and citizen of
Mexico. He came to the United States when he was two
years old, and his wife and two children are all United States
1
Various portions of the record refer to petitioner’s last name as
“Salazar,” “Salazar-Gonzalez” and “Salazar-Gonzales.”
4 SALAZAR-GONZALEZ V. LYNCH
citizens. His parents also reside in the United States as lawful
permanent residents.
Salazar-Gonzalez was present in the United States
illegally in 2008 when he was detained by immigration
authorities. He was charged with removability and placed in
removal proceedings. He retained attorney Jeff Griffiths of
the Ganjoo Law Office to represent him.
Salazar-Gonzalez conceded removability and applied for
cancellation of removal. In his application, he presented
evidence of his employment history plus his considerable
family and community ties in the United States. At the same
time, Salazar-Gonzalez began pursuing an I-130 visa, which
is a petition for an alien relative that was filed by his wife, a
United States citizen. Griffiths expressed confidence Salazar-
Gonzalez would obtain permission to live in the United States
through this mechanism, representing in court filings that
“[Salazar-Gonzalez] qualifies for consular processing” and
that he “wishes to conclude his case as soon as possible and
Counsel expects that his I-130 petition will be approved by
11/2009.” When the Immigration Judge (IJ) denied his
application for cancellation of removal, Salazar-Gonzalez
followed Griffiths’s advice: he did not pursue an appeal of the
IJ’s decision but instead accepted voluntary departure and
returned promptly to Mexico to wait for his I-130 visa.
This was bad advice. After some delay, Salazar-Gonzalez
received word that his visa application had been denied. In
response to an email from Griffiths’s law office, consular
officials explained that Salazar-Gonzalez was statutorily
ineligible to receive an I-130 visa, and that no waiver was
available to him. Even more bad news awaited
SALAZAR-GONZALEZ V. LYNCH 5
him—Salazar-Gonzalez was informed that he would not be
eligible to apply to reenter the United States for ten years.
Salazar-Gonzalez attempted to return nonetheless. (When
he voluntarily departed after approximately thirty years in the
United States, he left behind his wife, children, and other
family members.) After reentering, he was again detained by
immigration authorities in early 2011. Represented by new
counsel, he filed a motion to reopen his prior removal
proceedings on the grounds that he had received ineffective
assistance of counsel. The IJ and the Board of Immigration
Appeals (BIA) both denied the motion to reopen. Salazar-
Gonzalez filed a timely petition for review in this court.
ANALYSIS
This case hinges on the legal question of whether it is a
reasonable tactical choice for a lawyer to advise an alien to
forfeit his right of appeal to the BIA and leave the United
States in order to apply for a visa for which he is statutorily
ineligible. As the Supreme Court recently confirmed in Mata
v. Lynch, 135 S. Ct. 2150, 2153–54 (2015), we have
jurisdiction to review an untimely motion to reopen under
8 U.S.C. § 1252(a). We grant the petition because the BIA
abused its discretion by characterizing a lawyer’s patently
erroneous and legally dead wrong advice as a reasonable
“tactical decision[].” See Toufighi v. Mukasey, 538 F.3d 988,
992 (9th Cir. 2008) (stating that we review for abuse of
discretion the BIA’s denial of a motion to reopen).
Salazar-Gonzalez acknowledges that his motion to reopen
removal proceedings was untimely, as the regulations provide
that the motion must be filed within ninety days after a final
administrative decision. 8 C.F.R. § 1003.2(c)(2). However,
6 SALAZAR-GONZALEZ V. LYNCH
this deadline is subject to equitable tolling. In Singh v.
Holder, 658 F.3d 879 (9th Cir. 2011), we succinctly
explained the requirements for equitable tolling due to
ineffective assistance of counsel. The petitioner must
demonstrate: “(a) that he was prevented from timely filing his
motion due to prior counsel’s ineffectiveness; (b) that he
demonstrated due diligence in discovering counsel’s fraud or
error; and (c) that he complied with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988).” Id. at 884.2 Having met these procedural
requirements, the alien must show that his “counsel’s
performance was deficient, and [that he] suffered prejudice”
as a result. Id. at 885.
Here, the BIA held that Salazar-Gonzalez had “complied
with the basic procedural requirements” necessary to obtain
equitable tolling for his motion to reopen. It concluded,
however, that he was not entitled to tolling because he “failed
to establish that his prior attorney engaged in ineffective
assistance.” In the BIA’s view, Griffiths’s recommendation
that Salazar-Gonzalez return to Mexico was a “tactical
decision[]” that “do[es] not rise to the level of ineffective
assistance of counsel.” This reasoning was in error.
The crux of Salazar-Gonzalez’s argument is that his
lawyer’s bad advice caused him to forfeit his right to appeal
the IJ’s denial of his application for cancellation of removal.
2
Strict compliance with Lozada is not always necessary for equitable
tolling. See, e.g., Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003) (“[W]e
have been flexible in applying the Lozada requirements.”); Castillo-Perez
v. I.N.S., 212 F.3d 518, 526 (9th Cir. 2000) (granting petition despite
petitioner’s failure to comply with “formal requirements of Matter of
Lozada”).
SALAZAR-GONZALEZ V. LYNCH 7
The record amply supports this claim. In court filings,
Griffiths expressed certainty that Salazar-Gonzalez would
soon receive an I-130 visa. In fact, Griffiths was so confident
that he moved to expedite the cancellation of removal hearing
so Salazar-Gonzalez could return to Mexico to complete the
I-130 application process.
Salazar-Gonzalez was not, however, eligible for such
relief. The Immigration and National Act (INA) bars
individuals who have been in the United States unlawfully for
more than one year from obtaining an I-130 visa for a period
of ten years. 8 U.S.C. § 1182(a)(9)(B)(i)(II) (“[An alien who]
has been unlawfully present in the United States for one year
or more, and who again seeks admission within 10 years of
the date of such alien’s departure or removal from the United
States, is inadmissible.”). This prohibition is, however,
subject to waiver by the Attorney General for the spouses and
children of U.S. citizens or permanent residents. Id.
§ 1182(a)(9)(B)(v). Given that Salazar-Gonzalez’s wife and
children were U.S. citizens and his parents were lawful
permanent residents, a waiver seemed potentially within his
grasp.
What Griffiths apparently overlooked is that the very next
subsection of the INA—28 U.S.C. § 1182(a)(9)(C)—imposes
an additional bar to relief. That provision provides that an
individual who spends more than one year unlawfully in the
United States and then “enters or attempts to reenter the
United States without being admitted” is inadmissible and not
eligible for a waiver. Id. § 1182(a)(9)(C)(i). Herein lies the
problem: after living in the United States illegally for over a
decade, Salazar-Gonzalez returned to Mexico in 2003 for a
funeral. His return to the United States later that year
constituted entering the United States without being admitted
8 SALAZAR-GONZALEZ V. LYNCH
following a year of unlawful presence. As consular officials
in Mexico determined, § 1182(a)(9)(C) thus prohibited
granting him a waiver of inadmissibility.3
The right to effective assistance of counsel in immigration
proceedings stems from the Fifth Amendment’s guarantee of
due process. See Mohammed v. Gonzales, 400 F.3d 785, 793
(9th Cir. 2005). As in a criminal case, a lawyer’s
performance in an immigration proceeding is not measured
using “specific guidelines,” Wiggins v. Smith, 539 U.S. 510,
521 (2003), but is instead a context-dependent inquiry into
whether the attorney acted with “sufficient competence,”
Mohammed, 400 F.3d at 793. And just as a criminal
defendant can establish prejudice without showing that a
competent lawyer definitely would have earned an acquittal,
see Strickland v. Washington, 466 U.S. 668, 694 (1984), an
alien’s burden is to demonstrate that his lawyer’s errors “may
have affected the outcome of the proceedings,” Mohammed,
400 F.3d at 794 & n.11 (quoting Iturbarria v. I.N.S., 321 F.3d
889, 900 (9th Cir. 2003)).
We have little difficulty concluding that Griffiths’s advice
constituted deficient performance. When Salazar-Gonzalez’s
request for cancellation of removal was denied, he had a
chance to obtain relief through an appeal to the BIA. If he
returned to Mexico, he was doomed to at least ten years of
inadmissibility. “It is nigh impossible to imagine how a
competent attorney would make a conscious decision to
pursue a course leading to certain failure, when faced with
several paths to success.” Singh, 658 F.3d at 886. Griffiths’s
3
Before the BIA, the government argued that consular relief was
“available” to Salazar-Gonzalez when he returned to Mexico. It has since
retreated from that argument.
SALAZAR-GONZALEZ V. LYNCH 9
failure to grasp and advise his client on the futility of the I-
130 course of action constituted ineffective assistance. See
Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (advice based
on “incorrect” understanding of the law is ineffective).
Salazar-Gonzalez was prejudiced by his counsel’s
deficient performance. When a lawyer’s error results in an
alien being denied his right to appeal altogether, we apply a
“presumption of prejudice.” See Roe v. Flores-Ortega,
528 U.S. 470, 483 (2000); see also Dearinger v. Reno,
232 F.3d 1042, 1045 (9th Cir. 2000) (applying presumption
of prejudice because when “an alien is prevented from filing
an appeal in an immigration proceeding due to counsel’s
error, the error deprives the alien of the appellate proceeding
entirely”). The government presented no evidence that would
rebut this presumption, and our review of the record
demonstrates that Salazar-Gonzalez presented significant
evidence in support of his cancellation of removal
application. Thus he has demonstrated that the outcome of
the proceedings may have been different had he not been the
victim of ineffective counsel.
We are not persuaded by the government’s additional
arguments for denying the petition. To begin, the
government notes that Griffiths did not “force[]” Salazar-
Gonzalez “to accept voluntary departure.” Government Brief
at 23 (citing Nehad v. Mukasey, 535 F.3d 962 (9th Cir.
2008)). This is true but begs the question. It is beyond cavil
that bad advice—not just outright extortion—can constitute
ineffective assistance of counsel. The government’s view is
also naive—in an area of law that ranks just behind the
10 SALAZAR-GONZALEZ V. LYNCH
federal tax code in complexity,4 it is hardly rational to think
that someone with a high school education would have the
wherewithal to know that he should ignore and override his
lawyer’s advice.
The government urges that Salazar-Gonzalez’s filings
contain “no evidence” of “what representations [Griffiths] did
or did not make to him.” Not so. Salazar-Gonzalez’s motion
to reopen contained a brief filed by Griffiths asserting that he
“qualifies for consular processing” and that he “wishes to
conclude his case as soon as possible and Counsel expects
that his I-130 petition will be approved by 11/2009.” The
record also contains a complaint from Salazar-Gonzalez
alleging that “[Griffiths] told me to waive my appeal rights
and return to Mexico to wait for my visa.” The BIA credited
these statements as satisfying Lozada and they also reveal
what Griffiths advised Salazar-Gonzalez to do.
Finally, the government asserts that there is no indication
that Salazar-Gonzalez had agreed to represent him in an
appeal to the BIA. That contention is both misleading and
nonconsequential. The record shows that Griffiths’s firm
continued to represent Salazar-Gonzalez after the IJ rendered
his decision; for example, attorneys from that office sent
emails to consular officials on his behalf. In any event, the
gravamen of Salazar-Gonzalez’s claim is that he was duped
into forgoing his appeal by Griffiths’s bad advice about his
eligibility for the I-130 visa. Whether Salazar-Gonzalez
4
“With only a small degree of hyperbole, the immigration laws have
been termed ‘second only to the Internal Revenue Code in complexity.’”
Castro- O’Ryan, 847 F.2d at 1312 (quoting E. Hull, Without Justice for All
107 (1985)).
SALAZAR-GONZALEZ V. LYNCH 11
intended to retain Griffiths or any other lawyer to conduct the
appeal is of no import.
We recognize that there are situations where counsel’s
advice is legitimately a matter of judgment, tactics, or
weighing probabilities. This situation is not of that ilk. To
cause an alien to completely forfeit the right to appeal
because of a totally mistaken view on the availability of other
relief is an abdication of counsel’s duty.
CONCLUSION
The BIA concluded that Salazar-Gonzalez met all of the
procedural requirements to establish entitlement to equitable
tolling. We conclude he has met the substantive requirement
of demonstrating that his counsel performed deficiently and
that he suffered prejudice as a result. Salazar-Gonzalez is
entitled to equitable tolling in the filing of his motion to
reopen.
Petition GRANTED and REMANDED.