Carlos Alvarez-Espino v. William Barr

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐2289
CARLOS ALVAREZ‐ESPINO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A200‐557‐981
____________________
ARGUED JANUARY 7, 2020 — DECIDED MARCH 6, 2020
AMENDED MAY 20, 2020
____________________
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
SCUDDER, Circuit Judge. Carlos Alvarez‐Espino entered the
United States illegally in 1996, settled in Chicago, but later ran
into legal trouble and came to the attention of immigration
enforcement. During his time here, Alvarez‐Espino assisted
law enforcement by helping to solve a 2002 gas station rob‐
bery in which he was held at gunpoint. Helping the police
2 No. 19‐2289
made Alvarez‐Espino potentially eligible for a U visa, which
could allow him to stay in the United States. He hired immi‐
gration counsel, but his lawyer failed to realize that Alvarez‐
Espino had a chance at receiving a U visa and instead pursued
another remedy without success. Alvarez‐Espino changed
lawyers, but it was too late to reverse course. After protracted
proceedings, the Board of Immigration Appeals denied mul‐
tiple requests for relief, leaving Alvarez‐Espino at risk of re‐
moval.
In denying relief, the Board held Alvarez‐Espino to an un‐
duly demanding burden on his allegation of ineffective assis‐
tance of counsel. But the law is equally clear that Alvarez‐Es‐
pino’s ability to continue pursuing a U visa means that he can‐
not show prejudice from his attorney’s performance. So we
are left to deny his petition for review.
I
Carlos Alvarez‐Espino was born in Mexico in 1970. He en‐
tered the United States in 1996 without permission. Since then
he and his wife have had four children, and he supports his
family by running an upholstery business. Alvarez‐Espino’s
time in the United States has not been without incident. In
2002, two men robbed him at gunpoint at a gas station in Chi‐
cago. Five years later, he was arrested for drunk driving and,
following a probation violation, ended up with a one‐year
prison term. Alvarez‐Espino served about half of his sentence
before being released on parole and taken into immigration
custody. Removal proceedings then commenced. See 8 U.S.C.
§ 1182(a)(6)(A)(i) (authorizing the removal of persons present
in the United States without being admitted or paroled).
No. 19‐2289 3
Alvarez‐Espino hired an attorney to assist him in navi‐
gating the complicated immigration system. His counsel de‐
cided to pursue one and only one legal strategy—cancellation
of removal, a discretionary form of relief from deportation for
immigrants who have been in the country for at least ten years
and whose families would suffer severe hardship if they were
removed. See 8 U.S.C. § 1229b(b)(1). But people who have
served 180 days or more in prison are ineligible for cancella‐
tion, see id. §§ 1229b(b)(1)(B), 1101(f)(7), and Alvarez‐Espino
spent about that much time in prison for his probation viola‐
tion.
Counsel’s strategy had little chance of success but never‐
theless led to a drawn‐out legal battle. After several continu‐
ances and missed deadlines over more than three years, an
immigration judge concluded that Alvarez‐Espino served too
much time in prison to be eligible for cancellation of removal.
Even if that conclusion was mistaken, the IJ noted, Alvarez‐
Espino’s barebones application for cancellation failed on the
merits. In denying relief, the IJ expressed frustration that the
case “had been continued for more than three years to de‐
velop the issues” and yet counsel had come forward with
“very little information.”
On appeal, the Board of Immigration Appeals agreed that
Alvarez‐Espino was ineligible for cancellation. From there,
however, the Board remanded to the immigration court to
consider whether Alvarez‐Espino could receive voluntary de‐
parture. By leaving the United States voluntarily, Alvarez‐Es‐
pino would be able to apply for permission to reenter in ten
years, as opposed to facing a potential lifetime bar to reentry.
See 8 U.S.C. § 1229c.
4 No. 19‐2289
Alvarez‐Espino grew frustrated and in time sought advice
from a different lawyer. That new counsel asked Alvarez‐Es‐
pino basic questions about his background and time in the
United States. She immediately realized that he likely quali‐
fied for a U visa based on the assistance he provided to the
police after being robbed at gunpoint. Congress made U visas
available to immigrant victims of crime in the United States
who suffered substantial physical or mental abuse and who
assisted the authorities in investigating that crime. See 8
U.S.C. § 1101(a)(15)(U). U visa applicants must receive from a
law enforcement official a certification that they have been (or
are likely to become) helpful in investigating or prosecuting
criminal activity. See id. § 1184(p)(1). Applicants also must
show that they are admissible, or otherwise eligible to receive
a visa. See id. § 1182(a). For someone like Alvarez‐Espino who
entered the United States illegally, a waiver of inadmissibility
can excuse that violation for the purpose of seeking a visa. See
id. § 1182(d)(14).
Knowing all of this, Alvarez‐Espino’s new counsel began
assembling a U visa application and requested the necessary
law enforcement certification. She also appeared before the
immigration court and sought a continuance to complete the
paperwork before submitting the application to the United
States Citizenship and Immigration Services, a component of
the Department of Homeland Security.
But all of this proved too late. The IJ denied the continu‐
ance, emphasizing that Alvarez‐Espino had years to apply for
a U visa but failed to do so until removal proceedings were
far along. The IJ also rejected new counsel’s explanation that
the delay should be excused because of the ineffective assis‐
tance of Alvarez‐Espino’s prior counsel.
No. 19‐2289 5
Alvarez‐Espino appealed the denial of the motion for a
continuance and moved for a remand to apply for a waiver of
inadmissibility before the immigration court. He also sought
to terminate his proceedings based on errors in the initial No‐
tice to Appear before immigration authorities.
While his appeal was pending, Alvarez‐Espino’s new at‐
torney filed his U visa application with USCIS. Alvarez‐Es‐
pino also took the steps required by the Board to prove an in‐
effective assistance claim. See Matter of Lozada, 19 I. & N. 637
(B.I.A. 1988). He signed an affidavit about his previous repre‐
sentation and sent a letter to his first lawyer alleging ineffec‐
tive assistance. He also sent a request for investigation to the
state bar disciplinary authorities. Alvarez‐Espino’s first attor‐
ney responded to the allegations by stating that “Mr. Espino
never advised me that he was a victim of a crime. I have pre‐
pared hundreds of U‐visa applications over the past years,
and I always ask my clients on the first interview date
whether a client has been a victim of a crime.”
The Board dismissed the appeal. Rejecting Alvarez‐Es‐
pino’s ineffective assistance allegations, the Board deter‐
mined that “it was not evident that [he] informed his prior
counsel of the robbery.” The Board also underscored Alvarez‐
Espino’s repeated delays in the immigration courts. Nor
could Alvarez‐Espino show any prejudice, the Board contin‐
ued, because he remained able, even if ordered removed to
Mexico, to pursue a U visa. The Board also denied Alvarez‐
Espino’s motion to terminate proceedings because he suffered
no harm from any error in his Notice to Appear.
Alvarez‐Espino now petitions for our review.
6 No. 19‐2289
II
We review the denial of motions for a continuance and for
a remand for abuse of discretion, reversing only if the decision
“was made without a rational explanation, inexplicably de‐
parted from established policies, or rested on an impermissi‐
ble basis.” Giri v. Lynch, 793 F.3d 797, 800–01 (7th Cir. 2015);
see also Toure v. Barr, 926 F.3d 403, 407 (7th Cir. 2019) (motion
for continuance); Cruz‐Martinez v. Sessions, 885 F.3d 460, 464
(7th Cir. 2018) (motion to remand).
A
Alvarez‐Espino argues that the immigration judge and the
Board should have granted the continuance to allow USCIS
time to process his U visa application. The Attorney General
recently clarified that immigration judges may allow contin‐
uances only if the noncitizen demonstrates good cause. See
Matter of L‐A‐B‐R‐, 27 I. & N. Dec. 405, 411 (A.G. 2018) (citing
8 C.F.R. § 1003.29). Alvarez‐Espino sought to do so by assert‐
ing that his first attorney was ineffective. But the Board re‐
jected his argument, emphasizing that the record failed to
show that Alvarez‐Espino informed his prior counsel of the
robbery.
The Board’s reasoning misses the mark. While noncitizens
in removal proceedings do not have a right to counsel under
the Sixth Amendment, the denial of effective assistance of
counsel may under certain circumstances violate an immi‐
grant’s statutory right to retain counsel or the due process
guarantee of the Fifth Amendment. Compare Sanchez v. Keis‐
ler, 505 F.3d 641, 647–48 (7th Cir. 2007) (locating the right to
retain counsel in the Immigration and Nationality Act) with
Surganova v. Holder, 612 F.3d 901, 907 (7th Cir. 2010)
No. 19‐2289 7
(explaining that ineffective assistance may violate the Fifth
Amendment). To prevail, the attorney’s error must be “so un‐
fair as to have precluded [the noncitizen] from reasonably
presenting his case.” Sanchez v. Sessions, 894 F.3d 858, 862 (7th
Cir. 2018). Applying that standard, we have found ineffective‐
ness when an attorney admitted that his client’s marriage was
fraudulent and by doing so precluded all defenses to removal,
Habib v. Lynch, 787 F.3d 826, 831 (7th Cir. 2015), and when an
attorney could not provide any reason for failing to pursue a
likely meritorious ground of relief, Keisler, 505 F.3d at 650. We
also require the noncitizen to show prejudice. In this immi‐
gration context, that means that counsel’s errors “actually had
the potential for affecting the outcome of the proceedings.”
Sanchez, 894 F.3d at 863 (internal citations and quotations
omitted).
The Board should not have faulted Alvarez‐Espino for fail‐
ing to provide his initial counsel with information significant
to a potential U visa application. The Board’s reasoning is
backwards: it is up to counsel, not the client, to ask the right
questions and to solicit information pertinent to potential le‐
gal grounds to prevent removal. To place the burden on Alva‐
rez‐Espino as the Board did is to require him to have a nu‐
anced understanding of American immigration law. That ex‐
pectation defies reality.
None of this is hypothetical. Alvarez‐Espino explained in
his affidavit that his initial counsel never asked him if he had
been a crime victim. For his part, prior counsel seemed to dis‐
agree, stating that his general practice is to ask clients whether
they have been victims of crime. Confusion abounds on the
point, and it suffices here to reinforce our primary message in
Sanchez v. Keisler: counsel needs to “exercise professional
8 No. 19‐2289
judgment” in evaluating and pursuing potential avenues for
relief in representing noncitizens like Alvarez‐Espino who
find themselves entangled in complex immigration proceed‐
ings and at risk of being removed from the United States. See
505 F.3d at 648.
In the end, Alvarez‐Espino’s larger obstacle is that he can‐
not make the required showing of prejudice. Unlike a situa‐
tion where an attorney’s decisions have irreparably under‐
mined a noncitizen’s prospects for relief, e.g., Habib, 787 F.3d
at 831, here Alvarez‐Espino can and did file his application for
a U visa. USCIS will process the application whether or not
Alvarez‐Espino has a final order of removal against him. The
Board did not address the question whether there would be
prejudice in the context of actual removal, and neither do we.
Because Alvarez‐Espino remains able to continue pursu‐
ing U visa, his only potential theory of prejudice is that his
first counsel’s deficient performance delayed the filing of his
application. Perhaps so. But we have never found mere delay
prejudicial, nor do we see support for such a view in other
circuits. While sympathetic to what Alvarez‐Espino experi‐
enced with his first counsel, we cannot conclude that the
Board abused its discretion in denying the motion for a con‐
tinuance.
So too must we reject Alvarez‐Espino’s contention that the
Board should have granted his motion to remand the case to
an immigration judge so that he could seek a waiver of inad‐
missibility. Though Alvarez‐Espino could seek a waiver from
an immigration judge, he need not do so. Under our case law,
immigration judges and USCIS share concurrent jurisdiction
over U visa waivers, though only USCIS may grant U visas
themselves. See Baez‐Sanchez v. Sessions, 872 F.3d 854, 855–56
No. 19‐2289 9
(7th Cir. 2017). Acknowledging the existence of both path‐
ways, Alvarez‐Espino also sought a waiver from USCIS,
which should be adjudicated with his U visa application. Be‐
cause Alvarez‐Espino can continue to pursue every immigra‐
tion benefit he seeks, the Board did not abuse its discretion in
denying his motion for remand or for a continuance.
B
We close with a brief response to Alvarez‐Espino’s conten‐
tion that removal proceedings should end because the Notice
to Appear he received from the immigration court failed to
include a date and time for his initial hearing. Alvarez‐Espino
grounds his argument in the Supreme Court’s recent decision
in Pereira v. Sessions, 138 S. Ct. 2105 (2018).
In Ortiz‐Santiago v. Barr, we discussed Pereira and ex‐
plained that the agency’s rule that a Notice to Appear must
contain a date and time is not jurisdictional, but instead re‐
flects a claims‐processing rule. 924 F.3d 956, 962–63 (7th Cir.
2019). The upshot of that conclusion for Alvarez‐Espino is that
he must prove prejudice from the Notice to Appear lacking
date and time information. He has not done so. The record
shows that immigration authorities sent Alvarez‐Espino a
supplemental letter informing him of the date and time of his
initial hearing. He then attended the proceeding, eliminating
any claim of prejudice. See Vyloha v. Barr, 929 F.3d 812, 817
(7th Cir. 2019) (reaching the same conclusion).
For these reasons, we DENY the petition for review.