Daniel Flores v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL FLORES, AKA No. 15-73461
Richard Daniel Flores,
Petitioner, Agency No.
A013-068-941
v.
WILLIAM P. BARR, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 13, 2019*
Pasadena, California
Filed July 18, 2019
Before: Kim McLane Wardlaw, Jay S. Bybee, and
John B. Owens, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 FLORES V. BARR
SUMMARY**
Immigration
Granting in part and denying in part Daniel Flores’s
petition for review of a decision of the Board of Immigration
Appeals’ denying his untimely motion to reopen based on
ineffective assistance of counsel, the panel concluded that the
BIA applied standards more stringent than were proper in
concluding that Flores had not established prejudice as a
result of his prior counsel’s performance, and remanded.
The BIA denied Flores’s motion to reopen on the ground
that he failed to show his prior counsel’s performance
resulted in prejudice with respect to any of the forms of relief
he would pursue on reopening – asylum, withholding of
removal, protection under the Convention Against Torture
(CAT), and relief under former Immigration & Nationality
Act § 212(c).
Because the agency had concluded that Flores’s
conviction for committing lewd and lascivious acts on a child
under the age of 14 in violation of California Penal Code
§ 288(a) was an aggravated felony, the panel considered
whether it had jurisdiction in light of 8 U.S.C.
§ 1252(a)(2)(C), which bars review of a final order of
removal against an alien who is removable for having
committed certain offenses. The panel concluded that it had
jurisdiction to review: (1) the legal question of whether
Flores’s conviction was an aggravated felony; and (2) the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FLORES V. BARR 3
denial of the motion to reopen to the extent the decision
rested on a ground other than the conviction.
The panel explained that, to establish prejudice in the
context of a motion to reopen based on ineffective assistance
of counsel, it is not necessary for a petitioner to make out a
prima facie case of eligibility for the ultimate relief sought—a
petitioner need only show that counsel’s deficient
performance “may have affected the outcome of the
proceedings” by showing “plausible” grounds for relief.
With respect to asylum and withholding of removal, the
panel concluded that the BIA did not abuse its discretion in
concluding that Flores suffered no prejudice, explaining that
Flores’s § 288(a) conviction was a “sexual abuse of a minor”
aggravated felony under this court’s precedent, and that
Flores failed to identify any intervening higher authority that
is clearly irreconcilable with that precedent. Because Flores
was convicted of an aggravated felony with a sentence of
more than five years, the panel concluded that he was
statutorily ineligible for asylum and withholding of removal
and that, therefore, the BIA did not abuse its discretion in
determining that Flores failed to show prejudice on those
grounds for relief, which were not “plausibly” available to
him.
However, the panel concluded that the BIA abused its
discretion in concluding that Flores failed to show prejudice
with respect to deferral of removal under the CAT.
Specifically, the panel explained that the BIA applied the
wrong standard at this stage of proceedings by concluding
that the evidence Flores submitted with his motion did not
show “a clear probability” that he would be tortured upon his
return to Mexico; although the more-likely-than-not standard
4 FLORES V. BARR
governs the merits of a CAT claim, in the context of a motion
to reopen for ineffective assistance, Flores was only required
to show plausible grounds for relief.
The panel concluded that the BIA made the same error
with respect to Flores’s claim for § 212(c) relief, noting that
the BIA concluded that the additional evidence of hardship
that Flores presented “would not change” the result and
explaining that the BIA abused its discretion by improperly
ruling on the merits of the new § 212(c) evidence in the
context of determining prejudice.
Accordingly, the panel remanded to the BIA to consider
evidence relating to these forms of relief under the correct
standard for prejudice.
COUNSEL
David B. Gardner, Law Offices of David B. Gardner, Los
Angeles, California, for Petitioner.
Matthew B. George, Trial Attorney; Benjamin C. Mizer,
Principal Deputy Assistant Attorney; Douglas E. Ginbsurg,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
FLORES V. BARR 5
OPINION
PER CURIAM:
Daniel Flores petitions for review of the Board of
Immigration Appeals’ (BIA) order denying his untimely
motion to reopen his removal proceedings. Flores’s motion
rested on his assertion that he received ineffective assistance
of counsel during his removal proceedings. Although the
BIA agreed with Flores that his prior counsel performed
deficiently, the BIA denied his motion to reopen after
concluding that Flores failed to show prejudice. With respect
to some of Flores’s claims, however, the BIA applied
“standards more stringent than were proper” for determining
prejudice. Maravilla Maravilla v. Ashcroft, 381 F.3d 855,
859 (9th Cir. 2004) (per curiam). We accordingly grant the
petition in part, deny the petition in part, and remand for
further proceedings.
I
A
Petitioner Daniel Flores is a native and citizen of Mexico.
He came to the United States as a lawful permanent resident
in 1962, when he was seven years old, and has continuously
lived in the United States ever since. All of his family—his
elderly mother, his half-brother, two daughters, and several
grandchildren—live in the United States. He has no family
in Mexico.
Starting in the 1970s, Flores began serving as a
confidential informant for law enforcement, participating in
undercover controlled drug buys and testifying against
6 FLORES V. BARR
members of various gangs. Also around that time, Flores
began to amass a lengthy criminal record that culminated in
his pleading guilty in 1990 to two felony counts of
committing lewd and lascivious acts on a child under the age
of 14 in violation of California Penal Code § 288(a). Flores’s
conviction carried with it a six-year prison sentence, of which
he served three. He was released from prison on parole in
1994, discharged from parole in 1997, and has no further
criminal record.
After his release from prison, Flores worked in the
corporate security industry until 2002, when he stopped
working for health reasons. He resumed his role as a
confidential informant for law enforcement in 2008 but was
forced to discontinue his assistance in 2011 following foot
surgery. Today, Flores spends his time taking care of his
mother, who suffers from several serious medical conditions,
including epilepsy, Parkinson’s disease, and dementia.
B
DHS initiated removal proceedings against Flores,
alleging that his conviction under § 288(a) qualified as an
“aggravated felony” conviction for a “crime of violence”
under 8 U.S.C. § 1101(a)(43)(F) and “sexual abuse of a
minor” under 8 U.S.C. § 1101(a)(43)(A), independent bases
rendering Flores removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). After attending a couple of immigration
hearings unrepresented, Flores hired an attorney to represent
him, admitted he was a Mexican citizen, and denied the
charges of removability. An immigration judge (IJ)
concluded that Flores had in fact been convicted under
§ 288(a) and that this conviction constituted both a “crime of
violence” and “sexual abuse of a minor,” at which point
FLORES V. BARR 7
Flores sought only one form of relief from
removal—discretionary relief under former § 212(c) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c)
(repealed 1996).1 For the agency to exercise its discretion in
favor of granting § 212(c) relief, the applicant must show that
the “the social and humane considerations presented in the
applicant’s favor” outweigh “the adverse factors that
evidence the applicant’s undesirability as a permanent
resident.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923
(9th Cir. 2007) (citation omitted); see Matter of Marin, 16 I.
& N. Dec. 581, 584–85 (BIA 1978).
An IJ heard testimony from Flores, his mother, his half-
brother, and his two daughters. All of Flores’s relatives
supported his request to remain in the United States, stressing
his good character and the hardships his removal would
produce. Nevertheless, the IJ denied Flores’s application
for § 212(c) relief in August 2013. Although the IJ
identified several positive factors bearing on Flores’s
application—including, among others, his many years of
residency in the United States; his close and supportive
relationship with his elderly mother; his work for law
enforcement; and the absence of any criminal conduct since
his release from prison in 1994—the IJ concluded that these
factors did not outweigh the “serious nature” of his § 288(a)
conviction. The IJ also noted Flores’s lack of recent
employment and his failure to “voluntarily” attend counseling
after his release from prison (even though he had attended
counseling while in prison).
1
Although it was repealed in 1996, § 212(c) relief “remain[s]
available, on the same terms as before, to an alien whose removal is based
on a guilty plea entered before § 212(c)’s repeal.” Judulang v. Holder,
565 U.S. 42, 48 (2011) (citing INS v. St. Cyr, 533 U.S. 289, 326 (2001)).
8 FLORES V. BARR
Flores appealed the IJ’s decision to the BIA. Reviewing
the IJ’s decision de novo, the BIA concluded that the IJ
“properly balanced the adverse factors of record evidencing
the respondent’s undesirability as a permanent resident with
the social and humane considerations presented in his behalf
and correctly determined that relief is not in the best interest
of this country.”
Flores then filed a petition for review in this court. The
government moved to dismiss, arguing that we lacked
jurisdiction to review the discretionary denial of § 212(c)
relief. See, e.g., Palma-Rojas v. INS, 244 F.3d 1191, 1192
(9th Cir. 2001) (per curiam). Flores, represented by the same
attorney, never responded. We granted the motion to dismiss
for lack of jurisdiction in June 2015 and denied rehearing
shortly thereafter.
C
In August 2015, Flores, represented by new counsel, filed
a motion with the BIA to reopen his removal proceedings,
alleging that his prior counsel provided ineffective assistance.
Ordinarily, a motion to reopen must be filed within 90 days
of the final removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2), a deadline that had long passed for
Flores. But the 90-day deadline is subject to “equitable
tolling due to ineffective assistance of counsel.”
Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir.
2015). For equitable tolling to apply, the petitioner must
show “(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
FLORES V. BARR 9
1988).” Id. (quoting Singh v. Holder, 658 F.3d 879, 884 (9th
Cir. 2011)). In addition to these procedural requirements,
the petitioner “must show that his ‘counsel’s performance
was deficient, and that he suffered prejudice’ as a result.” Id.
(internal alteration omitted) (quoting Singh, 658 F.3d at 885).
Flores contended that his prior counsel provided
ineffective assistance by failing to, among other things,
challenge the grounds for his removability, apply for
withholding of removal and protection under the Convention
Against Torture (CAT), develop sufficient hardship evidence
for his § 212(c) application, prepare his family members for
the § 212(c) hearing, and respond to the government’s motion
to dismiss in this court. Flores attached a sworn declaration
explaining his fear of being tortured in Mexico as a result of
his work helping to prosecute gang members. He also
submitted additional evidence of the hardship he and his
mother would face if he were removed, letters from law
enforcement confirming Flores’s work as a confidential
informant, and evidence of country conditions in Mexico,
including a declaration by a country conditions expert.
The BIA denied Flores’s motion to reopen. Although the
BIA concluded that Flores satisfied the requirements of
Lozada and demonstrated that his prior counsel “did not
perform with sufficient competence,” the BIA found that
Flores failed to show “prejudice” with respect to any of the
forms of relief he would pursue on reopening—asylum,
withholding of removal, and CAT protection. First, the BIA
concluded that Flores’s conviction under California Penal
Code § 288(a)—which, it observed, qualifies as an
“aggravated felony” conviction for “sexual abuse of a minor”
under 8 U.S.C. § 1101(a)(43)(A)—rendered him statutorily
ineligible for asylum, and that the six-year sentence
10 FLORES V. BARR
accompanying that conviction rendered him ineligible for
withholding of removal under the INA and withholding of
removal under the CAT. Second, the BIA concluded that
although Flores is eligible for deferral of removal under the
CAT, his evidence showed a “possib[ility]”—but not “a clear
probability”—that he would be tortured upon his return to
Mexico with the acquiescence of public officials. Third, the
BIA found no prejudice regarding Flores’s new evidence in
support of his § 212(c) application, concluding that this
“additional evidence of hardship to his mother and to
himself” “would not change” the result. Finally, the BIA
rejected Flores’s arguments that he suffered prejudice by his
prior counsel’s failure to prepare witnesses and failure to file
a response to the government’s motion to dismiss.
Because the BIA found no prejudice, it did not address
diligence before rejecting Flores’s request for equitable
tolling and denying his motion to reopen as untimely. Flores
filed a timely petition for review.
II
We first consider whether we have jurisdiction over
Flores’s petition for review. We ordinarily have jurisdiction
under 8 U.S.C. § 1252 to review the BIA’s denial of a motion
to reopen. See Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015).
The government contends, however, that we lack jurisdiction
in this case pursuant to 8 U.S.C. § 1252(a)(2)(C), which
provides that “no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed,” among other offenses, an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
FLORES V. BARR 11
But as the government admits, we have recognized two
exceptions to this jurisdiction-stripping provision that apply
in this case. First, § 1252(a)(2)(C) does not preclude “review
of constitutional claims or questions of law,” id.
§ 1252(a)(2)(D), including the question whether a particular
conviction is an aggravated felony under the INA. See, e.g.,
Diego v. Sessions, 857 F.3d 1005, 1011 (9th Cir. 2017).
Thus, to the extent Flores argues that his conviction under
§ 288(a) does not qualify as an aggravated felony, we have
jurisdiction to review that purely legal question.
Second, we have held that Ҥ 1252(a)(2)(C) applies only
when—and to the extent that—the agency has found the
petitioner to be removable based on one of the enumerated
criminal grounds.” Unuakhaulu v. Gonzales, 416 F.3d 931,
936 (9th Cir. 2005). Section 1252(a)(2)(C) therefore does not
apply “when the agency ‘does not rely on an alien’s
conviction in denying [the requested] relief.’” Agonafer v.
Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (quoting
Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007)); see
also Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015)
(“[T]he § 1252(a)(2)(C) bar does not apply to the denial of a
procedural motion that rests on a ground independent of the
conviction that triggers the bar.”).2 We therefore retain
jurisdiction to review the BIA’s denial of Flores’s motion to
reopen to the extent the BIA rested its decision on a ground
other than Flores’s conviction under § 288(a).
2
We acknowledge that this exception has been criticized both within
this circuit, see Pechenkov v. Holder, 705 F.3d 444, 449–52 (9th Cir.
2012) (Graber, J., concurring), and outside of this circuit, see, e.g.,
Ortiz-Franco v. Holder, 782 F.3d 81, 90 (2d Cir. 2015); id. at 92 n.1
(Lohier, J., concurring). But the exception “remain[s] good law” that we
as a three-judge panel are bound to apply. Garcia, 798 F.3d at 880.
12 FLORES V. BARR
III
We now turn to the merits of Flores’s petition for review.
We review the BIA’s denial of a motion to reopen for an
abuse of discretion, but review purely legal questions de
novo. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016).
“The BIA abuses its discretion when its decision is arbitrary,
irrational, or contrary to law.” Id. (citation omitted).
As noted above, the BIA denied Flores’s motion to reopen
for one reason—his failure to show prejudice resulting from
his counsel’s deficient performance. “To establish a showing
of prejudice in the context of a motion to reopen, it is not
necessary for a petitioner to make out a prima facie case of
eligibility for the ultimate relief sought—a petitioner need not
show that he would win or lose on any claims.”
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir.
2015) (per curiam) (internal quotation marks and alterations
omitted) (quoting Maravilla Maravilla, 381 F.3d at 858).
Rather, the petitioner need only demonstrate that counsel’s
deficient performance “may have affected the outcome of the
proceedings” by showing “plausible” grounds for relief. Id.
(quoting Maravilla Maravilla, 381 F.3d at 858). If that
standard is satisfied, the petitioner should be given “another
opportunity to present [his] case before the IJ” with adequate
counsel. Morales Apolinar v. Mukasey, 514 F.3d 893, 899
(9th Cir. 2008).
A
With respect to asylum and withholding of removal, the
BIA did not abuse its discretion in concluding that Flores
suffered no prejudice. An “aggravated felony” conviction
renders an alien ineligible for asylum, 8 U.S.C.
FLORES V. BARR 13
§ 1158(b)(2)(A)(ii), (B)(i); if that conviction resulted in a
prison sentence of at least five years, the alien is also
ineligible for withholding of removal under the INA, id.
§ 1231(b)(3)(B), and withholding of removal under the CAT,
8 C.F.R. § 1208.16(d)(2). One such “aggravated felony” is
“sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
Flores challenges the BIA’s conclusion that his conviction
under California Penal Code § 288(a) qualifies as a
conviction for “sexual abuse of a minor.”
We have already answered this question and “repeatedly
held that California Penal Code § 288(a) categorically
involves ‘sexual abuse of a minor’ under 8 U.S.C.
§ 1101(a)(43)(A).” United States v. Farmer, 627 F.3d 416,
420 (9th Cir. 2010) (citing United States v. Baron-Medina,
187 F.3d 1144, 1147 (9th Cir. 1999)); see also United States
v. Castro, 607 F.3d 566, 568 (9th Cir. 2010) (explaining that
“a conviction under section 288(a) categorically constitutes
‘sexual abuse of a minor’”); United States v. Medina-Villa,
567 F.3d 507, 512–16 (9th Cir. 2009) (same); United States
v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003) (same).
To overcome this precedent, Flores would need to
identify “intervening higher authority” that is “clearly
irreconcilable” with it. Miller v. Gammie, 335 F.3d 889, 893
(9th Cir. 2003) (en banc). He has not done so. Flores relies
primarily on recent Ninth Circuit cases—e.g., Menendez v.
Whitaker, 908 F.3d 467 (9th Cir. 2018); United States v.
Gomez, 757 F.3d 885 (9th Cir. 2014); Rivera-Cuartas v.
Holder, 605 F.3d 699 (9th Cir. 2010)—but those cases
addressed different federal offenses or different state statutes
14 FLORES V. BARR
(or both). In any event, none constitutes “intervening higher
authority.” Miller, 335 F.3d at 893 (emphasis added).3
Because Flores was convicted of an aggravated felony
with a sentence of more than five years, he is statutorily
ineligible for asylum and withholding of removal under the
INA and the CAT. The BIA therefore did not abuse its
discretion in determining that Flores failed to show prejudice
on those grounds for relief, which were not “plausibly”
available to him. See Granados-Oseguera v. Mukasey, 546
F.3d 1011, 1016 (9th Cir. 2008) (per curiam).
B
The BIA also concluded that Flores failed to show
prejudice from his former attorney’s ineffective assistance
with respect to “deferral of removal” under the CAT, 8 C.F.R.
§ 1208.17(a). The BIA abused its discretion in reaching that
conclusion.
Unlike withholding of removal, deferral of removal is
available even if the alien has been convicted of an
aggravated felony. See Lopez-Cardona v. Holder, 662 F.3d
1110, 1113–14 (9th Cir. 2011) (citing 8 C.F.R.
§ 1208.16(c)(4)). Under the regulations, “an applicant for
deferral of removal must demonstrate that it is more likely
than not that he or she will be tortured if removed” to the
3
Flores also makes passing references to Johnson v. United States,
135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018),
but he does not explain how those cases affect our precedent concerning
sexual abuse of a minor. He does not argue that the term “sexual abuse of
a minor” is unconstitutionally vague, which is the only issue to which
Johnson and Dimaya could speak. We accordingly express no opinion on
that issue.
FLORES V. BARR 15
proposed country of removal. Maldonado v. Lynch, 786 F.3d
1155, 1164 (9th Cir. 2015) (en banc); see 8 C.F.R.
§ 1208.16(c)(2), (3). “[T]orture” is defined “as ‘any act by
which severe pain or suffering, whether physical or mental,
is intentionally inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.’” Maldonado, 786 F.3d at 1162
(internal alteration omitted) (quoting 8 C.F.R.
§ 1208.18(a)(1)). Here, the BIA applied this standard in the
first instance and determined that the evidence submitted in
connection with Flores’s motion to reopen did not “show that
torture is more likely than not” if he were removed to Mexico
or that he faced “a clear probability” of acquiescence in any
such torture by a public official.
The BIA applied the wrong standard at this stage of the
proceedings. Although the more-likely-than-not standard
governs the merits of a CAT claim, see id. at 1164, in the
context of a motion to reopen for ineffective assistance, the
petitioner “need not show that [he] ‘would win or lose on any
claims.’” Maravilla Maravilla, 381 F.3d at 858 (quoting Lin
v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004)). Indeed, the
petitioner is not even required to “explain exactly what
evidence [he] would have presented in support of [those
claims].” Morales Apolinar, 514 F.3d at 898 (quoting
Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002)).
Rather, the question with respect to prejudice is whether
counsel’s deficient performance “may have affected the
outcome of the proceedings,” which means that the petitioner
“need only show ‘plausible grounds for relief.’” Id. (citations
omitted). If the petitioner makes that threshold showing, he
should be given an opportunity to prove his claims, this time
with the assistance of competent counsel. Any other rule
would force a petitioner to supply all of the evidence
16 FLORES V. BARR
supporting his claims in his motion to reopen. Such a
requirement would not only preclude the petitioner from
presenting oral testimony, but it would also hinder the
agency’s assessment of credibility, which is often a critical
issue with respect to many forms of relief from removal. It
is thus unrealistic to expect a petitioner to adequately present
his entire case in a written motion to the BIA; if the
petitioner’s claim is plausible, he should have the
“opportunity to present [his] case before the IJ.” Id. at 899.
We have accordingly held that the BIA abuses its discretion
when it “directly adjudge[s] the question of whether
petitioners would win or lose their claim,” thereby applying
a standard “higher than the standard required” to show
prejudice. Maravilla Maravilla, 381 F.3d at 858–59. And
that is precisely what the BIA did in this case.
Because the BIA analyzed Flores’s “new prejudice
evidence under standards more stringent than were proper,”
we grant the petition and remand to the BIA so that it may
“consider [the evidence] under the correct standard” for
prejudice. Id. at 859; see Lopez v. Ashcroft, 366 F.3d 799,
806–07 (9th Cir. 2004) (discussing INS v. Orlando Ventura,
537 U.S. 12, 16–18 (2002) (per curiam)).
C
The BIA made the same error with respect to Flores’s
claim for relief under former § 212(c). According to the BIA,
“[e]ven with the additional evidence of hardship to his mother
and to himself which he presents, we conclude that the result
in the case would not change.” The BIA again abused its
discretion by improperly ruling on the merits of the new
§ 212(c) evidence in the context of determining prejudice.
Remand is therefore appropriate on this claim as well. See
FLORES V. BARR 17
Maravilla Maravilla, 381 F.3d at 858–59 (remanding where
the BIA concluded that the “petitioners failed to show ‘the
outcome would have been different’”).
D
Flores raises several additional claims of prejudice, all of
which the BIA rejected. The BIA did not abuse its discretion
in doing so.
First, Flores argues that he suffered prejudice as a result
of his attorney’s failure to tell some of his family members
about the nature of his § 288(a) conviction, contending that
the IJ relied on this failure “as a factor weighing against the
exercise of discretion in [his] favor.” The IJ, however,
referenced Flores’s failure to share the nature of his
conviction with his family members, not his attorney’s. And
Flores’s failure to disclose this information to his family
members is obviously relevant to determining whether they
could, as the IJ noted, “form an opinion on [Flores’s] good
character.” The IJ’s reference to Flores’s omission certainly
does not demonstrate a due process violation attributable to
Flores’s attorney. Cf. Almaghzar v. Gonzales, 457 F.3d 915,
922 (9th Cir. 2006) (finding no due process violation where
an IJ “expressed skepticism about how [a witness’s]
testimony could provide insight” on an applicant’s credibility
when the witness “did not know of [the applicant’s]
conviction”).4
4
Relatedly, Flores contends that the IJ violated his due process rights
by engaging in “aggressive cross-examination” of his half-brother and
older daughter that went “outside the scope of questions pursued by the
DHS’s attorney.” But “the due process clause does not prevent an IJ from
examining a witness,” even in an “aggressive[]” and “harsh manner and
18 FLORES V. BARR
Second, Flores asserts that he suffered prejudice as a
result of his prior counsel’s failure to respond to the
government’s motion to dismiss in this court. “Prejudice is
ordinarily presumed in immigration proceedings when
counsel’s error ‘deprives the alien of the appellate proceeding
entirely,’” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th
Cir. 2003) (citation omitted), such as counsel’s “failure to file
a necessary document,” Hernandez-Mendoza v. Gonzales,
537 F.3d 976, 979 (9th Cir. 2007) (mem.). But the only issue
raised in Flores’s previous petition for review was the BIA’s
denial of his § 212(c) application, and that petition was
dismissed for lack of jurisdiction. Flores does not identify
any “arguments [that] might have been successful” in
responding to the government’s motion to dismiss on
jurisdictional grounds, which necessarily leads us to conclude
that “there was no prejudice from the ineffective assistance of
counsel” in this regard. Rojas-Garcia, 339 F.3d at 826.
Third, Flores suggests that he suffered prejudice as a
result of his prior counsel’s failure to recognize his eligibility
for a U visa, which he contends “would have been granted.”
But neither the BIA nor IJs have authority over U visa
petitions; that authority rests solely with United States
Citizenship and Immigration Services. See Lee v. Holder,
599 F.3d 973, 975–76 (9th Cir. 2010) (per curiam) (citing
8 C.F.R. § 214.14(c)(1)). Flores has not articulated how the
lack of a visa caused any prejudice in his immigration
proceedings before the IJ or BIA.
tone.” Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003)
(quoting Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998)).
FLORES V. BARR 19
IV
We grant the petition for review with respect to Flores’s
claims for deferral of removal under the CAT and relief under
former § 212(c), deny the petition for review with respect to
all other claims, and remand for further proceedings
consistent with this opinion. The parties shall bear their own
costs.
GRANTED IN PART, DENIED IN PART, AND
REMANDED.