Javier Baeza-Castro v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER BAEZA-CASTRO, Nos. 11-72520, 12-70520, 12-71120
AKA Juan Antonio Baeza,
AKA Smiley Baeza, Agency No. A074-111-136
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted August 5, 2013
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and
CEDARBAUM,** District Judge.
Javier Baeza-Castro petitions for review of three Board of Immigration
Appeals (“BIA”) orders, each denying a motion to reopen removal proceedings
*
This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
**
The Honorable Miriam Goldman Cedarbaum, Senior District Judge for the
Southern District of New York, sitting by designation.
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because of ineffective assistance of counsel. We have jurisdiction under 8 U.S.C.
§ 1252, and we grant the petitions for review of Baeza’s first and second motions
to reopen.
Baeza’s first attorney, Nicholas DePento, missed the deadline to file an
application for cancellation of removal by several weeks. The IJ denied Baeza’s
cancellation application on several grounds, including that it was inexcusably
untimely. Baeza’s second attorney, Mariana Hanna, successfully appealed the IJ’s
determination that Baeza had been convicted of an aggravated felony, which would
have otherwise made Baeza ineligible for cancellation under 8 U.S.C. §
1229b(a)(3). However, Hanna failed to appeal the IJ’s finding that the application
was untimely, and the BIA affirmed the unchallenged finding that the cancellation
application had been abandoned. Following the BIA’s decision, Baeza was
removed from the United States.
Approximately four years later, Baeza, through a third attorney, Jamahl
Kersey, filed a motion to reopen the removal proceedings, alleging ineffective
assistance of counsel only by DePento. The BIA denied the motion as time-barred
and also held that Baeza had not complied with one of the procedural requirements
of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA noted that it was
“unclear” why Baeza did not allege ineffective assistance against Hanna, because
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“the only factor . . . preventing [Baeza] from pursuing a claim for cancellation of
removal was the failure to file a timely application for relief, a finding which Ms.
Hanna did not challenge.”
Baeza next filed, pro se, a second motion to reopen. He alleged that Kersey
had himself provided ineffective assistance of counsel for, inter alia, failing to
argue that Hanna had provided ineffective assistance of counsel. Baeza also
addressed in his brief numerous facts related to Hanna’s representation, including
that Hanna never told him the outcome or basis of the BIA’s decision in his appeal.
The BIA denied this second motion to reopen as time- and number-barred. Baeza
then filed, pro se, a third motion to reopen, alleging ineffective assistance of
counsel against Hanna. The BIA denied the motion as time- and number-barred.
We find that the BIA abused its discretion in denying Baeza’s second
motion to reopen as untimely. In reaching this conclusion, the BIA simply relied
on its earlier finding that Baeza had not adequately explained the reason for his
delay in filing the first motion to reopen. The BIA did not meaningfully address
Baeza’s independent ineffective assistance claim against Kersey for his failure to
bring what would have been a successful ineffective assistance claim against
Hanna. The BIA also did not acknowledge Baeza’s explanation – which Kersey
failed to offer – regarding his delay in bringing the first motion.
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The second motion to reopen made clear that Baeza’s delay in bringing the
first motion to reopen was itself caused by Hanna’s deficient representation. See
Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) (“If the ineffective
assistance of an alien’s counsel prevents him from timely filing a motion to reopen,
counsel has prevented the alien from reasonably presenting his case and denied
him due process.”). Hanna never informed Baeza about the outcome of his appeal.
After his removal, Baeza called Hanna’s office from Mexico to “receive an
explanation and instructions” regarding his immigration proceedings. He was told
by Hanna’s assistant that he could re-enter the United States using his legal
identification documents. After following this advice, Baeza again called Hanna to
schedule a meeting, but Hanna’s assistant told him “not to worry,” that Hanna
“will handle all the matters,” and that “there is no need for a meeting.” Hanna did
not return his phone calls and was not at the office when Baeza went to meet her
there. Finally, he was “assured no other [i]mmigration issues remained pending.”
That Hanna had effectively abandoned Baeza is further evidenced by the fact that
she did not file any motion to seek relief from the BIA’s decision – such as a
motion to reopen based on DePento’s ineffective assistance. Baeza was deprived
of the opportunity to present argument in a timely motion to reopen, or otherwise,
and was therefore prejudiced. See Singh v. Holder, 658 F.3d at 887 (presumption
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of prejudice where attorney “failed to timely file the motion to reopen that was a
prerequisite for applying for adjustment of status”). Baeza also would have
plausibly been entitled to relief, as he would have then been eligible for
cancellation under 8 U.S.C. § 1229b.
The government argues that Baeza was on notice of his ineffective
assistance claim against DePento as early as February 2007, when he heard the IJ
explain that the application was untimely. However, Baeza also heard the IJ
explicitly state that Baeza was “represented by competent counsel.” This statement
would have left a reasonable person in Baeza’s situation with the impression that
the mistake did not rise to the level of ineffective assistance. The government also
argues that Baeza was on notice when he was removed. However, the untimeliness
of his application was not the sole basis for the IJ’s decision, and in fact, was not
even the issue that Hanna briefed on appeal to the BIA. Because Hanna never
informed Baeza of the BIA’s decision – even after he inquired about the status of
his case – he could not have known that his removal turned solely on the fact that
DePento had not timely filed the application for cancellation. A petitioner need
only act with “due” or “reasonable” diligence in discovering his claim, “in the
context of his . . . particular circumstances.” Avagyan, 646 F.3d at 679. “We
cannot penalize” Baeza “for reasonably relying on the advice of counsel, even if
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that counsel turns out to have been incompetent or predatory.” Id.In sum, the BIA’s decision to deny Baeza’s second motion to reopen was an
abuse of discretion. It follows, then, that the basis for the BIA’s denial of the first
motion to reopen as untimely is undermined. Cf. Ray v. Gonzales, 439 F.3d 582,
590-91 (9th Cir. 2006) (“[O]ur finding of ineffective assistance regarding the
second motion to reopen necessarily undermines the validity of the BIA’s decision
to deny that first motion on procedural grounds.”).
Because we hold that the first motion to reopen should be treated as timely
filed, we reach two additional conclusions made by the BIA in denying that
motion. First, the BIA’s conclusion that Baeza’s first motion to reopen did not
comply with Lozada is inconsistent with our precedent. The Lozada requirements
are not sacrosanct, “especially when the record shows a clear and obvious case of
ineffective assistance.” Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.
2002). We have held that Lozada compliance is unnecessary where an attorney’s
ineffectiveness is demonstrated by failing to timely file an application. See id.;
Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). Neither judgment or
discretion is involved when an attorney fails to meet a deadline, and such a failure
is a clear default. Second, the BIA erred in apparently speculating or assuming that
Baeza learned the outcome of his BIA appeal shortly after its decision. Baeza’s
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affidavit submitted on the first motion to reopen – drafted by Kersey and which
Baeza states he did not completely understand – was vague on this point, stating
only that Baeza “later” learned that he would have been eligible for cancellation of
removal but for the untimeliness of his application. This only supports Baeza’s
claim of ineffective assistance against Kersey, given the importance of explaining
the reasons for the delayed filing.
Because Baeza represented himself on both the second and third motions to
reopen, he cannot argue that ineffective assistance warrants tolling the time- or
number-bar for his third motion to reopen. In any event, the petition for review of
the denial of his third motion is moot because we grant review of his other
petitions, which seek the same relief. Cf. Castillo-Perez, 212 F.3d at 528.
The petitions in Nos. 11-72520 and 12-70520 are GRANTED. We remand
to the BIA to consider as timely Baeza’s motion to reopen his removal proceedings
based on the ineffective assistance of counsel provided by DePento. The petition
in No. 12-71120 is DENIED as moot.
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