Rodriguez-Suruy v. Ashcroft

MEMORANDUM ^*

Petitioner Paola Rodriguez-Suruy petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an immigration judge’s (“IJ”) denial of her motion to reopen deportation proceedings held in absentia. She alleges that her attorney’s ineffective assistance caused her absence from the deportation hearing. She also contends that Article 3 of the Convention Against Torture trumps the exceptional circumstances standard for motions to reopen.

We first address whether petitioner exhausted her claim, because we are without jurisdiction to address a claim not raised at the administrative level. Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir. 2001) (en banc). Petitioner’s motion to reopen explained that her attorney had not provided her with notice of the hearing. Her appeal to the BIA also attributed her absence to her attorney’s error. Although petitioner did not expressly invoke the exceptional circumstances standard, or claim to have received ineffective assistance of counsel, she presented the factual background in her filings to the agency, and the IJ ruled that her attorney’s failure to provide notice did not constitute an exceptional circumstance. Thus, the issue was adequately presented to the agency, and we may consider petitioner’s argument. See id. at 1183-84, 1186 (claim exhausted where, inter alia, petitioner presented the factual background and BIA considered the merits); cf. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003) (“Before a petitioner can raise an argument on appeal, the petitioner must first raise the issue before the BIA or IJ.”).

A deportation order entered in absentia may be rescinded if the petitioner demonstrates that his or her absence was because of an exceptional circumstance. 8 U.S.C. § 1252b(c)(3)(A) (1994). The BIA has ruled that receipt of ineffective assistance of counsel qualifies as an exceptional circumstance. See Lo v. Ashcroft, 341 F.3d 934, 936-37 (9th Cir.2003). To show ineffective assistance of counsel, a petitioner generally must comply with the factors set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (adopting Lozada factors). However, the Lozada elements are not sacrosanct, Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir.2000), and have been “dispensed with ... where counsel’s ineffective assistance was obvious and undisputed on the face of the record.” Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir.2004). Moreover, ineffective assistance of counsel claims are seldom rejected solely because of Lozada deficiencies. Lo, 341 F.3d at 937 n. 4.

Petitioner explained her absence in a signed statement attached to her motion to reopen, and petitioner’s counsel candidly admitted that she did not notify petitioner of the hearing. That petitioner did not report her attorney to the bar, or provide an explanation for not doing so, does not derail her claim. She substantially complied with Lozada, and the ineffective assistance is apparent from the record. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002); cf. Rojas-Garcia, 339 F.3d at 826. Moreover, she had appeared at the previous nine hearings and had no incentive to delay the proceedings. See Singh v. INS, 295 F.3d 1037, 1040 (9th Cir.2002) (considering petitioner’s diligent attendance and reason to delay the proceedings).

Contrary to the IJ’s decision, which we review when the BIA rules summarily, see Reyes, 358 F.3d at 595, the failure of petitioner’s counsel to provide her with notice does qualify as an exceptional circumstance. Cf. Lo, 341 F.3d at 935. Accordingly, we grant the petition for review and remand to the BIA for further proceedings. We do not reach petitioner’s alternative argument regarding the Convention Against Torture.

PETITION GRANTED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.