Roldan-Madrigal v. Holder

FILED
NOT FOR PUBLICATION JUL 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VERONICA ROLDAN-MADRIGAL, No. 05-74250
Petitioner, Agency No. A079-538-070
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VERONICA ROLDAN-MADRIGAL, No. 08-74304
Petitioner, Agency No. A079-538-070
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
VERONICA ROLDAN-MADRIGAL, No. 09-71016
Petitioner, Agency No. A079-538-070
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 16, 2010
San Francisco, California
Before: RIPPLE, Senior Circuit Judge,** RYMER and FISHER, Circuit Judges.
Veronica Roldan-Madrigal (Madrigal), a native and citizen of Mexico,
petitions for review of three separate decisions of the Board of Immigration
Appeals (BIA): (1) an order summarily affirming the decision of an immigration
judge (IJ) denying Madrigal’s application for cancellation of removal [No. 05-
74250], (2) an order denying Madrigal’s motion to reopen proceedings [No. 08-
74304], and (3) an order denying Madrigal’s motion to reconsider the refusal to
reopen [No. 09-71016].
I
No. 05-74250
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
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We dismiss the petition for review of the IJ’s denial of Madrigal’s
application for cancellation of removal for lack of jurisdiction. Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (no jurisdiction “to review the IJ’s
subjective, discretionary determination that” an application fails to demonstrate
“‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D)”).
Although we retain jurisdiction over constitutional or legal claims, id. at 929-30,
Madrigal raised no such grounds before the BIA in the proceedings underlying this
petition.
II
No. 08-74304
Madrigal moved to reopen on the ground that she received ineffective
assistance from her first attorney, Alexander Lubarsky. The BIA’s disposition can
be read as saying that Madrigal did not pursue her claim diligently before she
consulted current counsel, or after she did, or for the entire period. We cannot tell
which the Board meant, and regardless, cannot tell the basis upon which it reached
a definitive conclusion.
In denying Madrigal’s motion to reopen, the BIA concluded Madrigal “fails
to show that she acted with diligence such that the Board should toll the motions
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deadline.” For this it cited Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir.
2007); Singh v. Gonzales, 491 F.3d 1090, 1095-96 (9th Cir. 2007); Valeriano v.
Gonzales, 474 F.3d 669, 673 (9th Cir. 2007); and the government’s opposition to
Madrigal’s motion to reopen. The cites to Ghahremani and Singh suggest that the
BIA may have believed Madrigal was not diligent in learning about Lubarksy’s
defectiveness prior to retaining her current counsel, Bernadette Connolly, as this
was the determinative inquiry in those cases. On the other hand, the cite to the
government’s opposition suggests it may have believed she failed to demonstrate
diligence for the whole time between 2005 and 2008. No support in the record was
noted for either possibility.
The BIA then stated that Connolly “has represented [Madrigal] since, at the
latest, October 17, 2007,” and that Madrigal’s “motion to reopen was filed more
than 90 days, indeed almost 10 months later” – which suggests that it may have
believed that even if Madrigal were diligent prior to October 17, 2007, she wasn’t
thereafter. There is no dispute that Madrigal had consulted Connolly by October
17, 2007, but to the extent the BIA intended to peg its diligence finding to the post-
October 17 period, it pointed to nothing in the record that indicated when (or if)
Madrigal definitively learned of Lubarsky’s shortcomings, and when (or if) she
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obtained the vital information bearing on the existence of an ineffective assistance
claim. See Ghahremani, 498 F.3d at 999. In particular, two questions occur:
First, at what point in time did Madrigal, and/or new counsel, have sufficient
information to pursue allegations of inadequate counsel under Lozada. Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988). And second, how does access (or lack of
access) to Lubarsky’s case file factor into the analysis? See Iturribarria v. INS,
321 F.3d 889, 893, 899 (9th Cir. 2003) (concluding “the ninety-day limitation
period provided by [8 C.F.R. § 1003.2] did not begin running until . . . the day Mr.
Iturribarria met with his new counsel to discuss his file” where Iturribarria’s
motion to reopen contended he “did not become aware of the deception until after
his present counsel reviewed his file with him” (emphasis added)).
We believe it is important to have the BIA’s reasoned views on these issues,
and necessary for meaningful judicial review to have the benefit of its specific
findings. Accordingly, we grant the petition from denial of the motion to reopen,
and remand for further proceedings consistent with this disposition.
III
No. 09-71016
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Madrigal’s petition for review of the BIA’s denial of her motion to
reconsider is dismissed as moot.
DISMISS PETITION [No. 05-74250]; GRANT PETITION AND
REMAND [No. 08-74304]; DISMISS PETITION [No. 09-71016].
The parties shall bear their own costs on appeal.
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