Dharmendra Prasad v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DHARMENDRA PRASAD, AKA No. 19-70499
Dharmendra Beltran Prasad, AKA Mar
Dharmendra, AKA Prasad Dhirendra, AKA Agency No. A041-813-173
Danny Prasad, AKA Dhirendra Prasad, AKA
Dmarmendra Prasad, AKA Ravind Prasad,
AKA Manjinder Singh Karwal, MEMORANDUM*
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 16, 2022
San Francisco, California
Before: BERZON and BEA, Circuit Judges, and BENNETT,** District Judge.
Dharmendra Prasad is a lawful permanent resident of the United States and a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
native and citizen of Fiji. Prasad petitions for review of the Board of Immigration
Appeals’ (“BIA”) denials of applications for asylum and withholding of removal
under the Immigration and Nationality Act and for deferral of removal under the
Convention Against Torture (“CAT”). We do not reach the merits of any of these
issues because we conclude that the BIA improperly failed to consider Prasad’s pro
se filings alleging ineffective assistance by his Qualified Representative (“QR”)
and requesting a different QR. We therefore grant Prasad’s petition, vacate his
removal order, and remand to the BIA for further proceedings.
1. The immigration judge (“IJ”) determined that, due to his mental illness,
Prasad is a class member in Franco-Gonzalez v. Holder and is therefore entitled to
a QR in removal proceedings. See Franco-Gonzalez v. Holder, No. 10-02211,
2013 WL 8115423 (C.D. Cal. Apr. 23, 2013) (permanent injunction). After a
hearing, the IJ denied Prasad’s applications for asylum and withholding on the
ground that Prasad’s conviction for making criminal threats under California Penal
Code § 422 qualifies as both a crime of violence and a particularly serious crime.
The IJ also denied CAT relief.
Prasad appealed to the BIA through his QR. While that appeal was pending,
Prasad filed several pro se documents with the BIA asserting that his QR had
provided ineffective assistance, including a pro se BIA brief and a filing styled as a
“motion to remove or discharge attorney of record.” In these filings, Prasad
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asserted that his QR had failed to submit to the IJ numerous pieces of evidence that
would have been helpful to Prasad’s case. For instance, Prasad’s brief stated that
his QR not only failed to submit to the IJ the jury verdicts for Prasad’s 2007
convictions, one of which served as the basis for the IJ’s particularly serious crime
finding, but also failed to inform the IJ that Prasad had been acquitted in 2007 of
assault with a deadly weapon under Penal Code § 245(A)(1). Instead, Prasad’s QR
erroneously told the IJ that Prasad had been convicted of the § 245 charge. Among
other things, these documents could have supported Prasad’s contention that he did
not use a knife in the events leading to his 2007 Penal Code § 422 conviction.
Having asserted these deficiencies, Prasad asked the BIA to remove his QR
from the case and not to accept any documents filed by the QR. In its order
dismissing Prasad’s appeal, the BIA noted that Prasad had “filed a motion
requesting termination of his attorney’s representation, along with a pro se Notice
of Appeal and a pro se appeal brief” but rejected Prasad’s request to dismiss his
QR because Prasad “has been deemed not mentally competent to represent
himself.” The BIA did not address any of Prasad’s ineffective assistance
allegations.
The BIA’s treatment of Prasad’s pro se filings was erroneous. The BIA
denied Prasad’s motion to discharge his QR because Prasad had “been deemed not
mentally competent to represent himself,” relying on the Franco-Gonzalez
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implementation order’s statement that “[a]bsent exceptional circumstances, a
[class] member shall not be found to have knowingly, intelligently and voluntarily
waived his right to a Qualified Representative.” (quoting Franco-Gonzalez v.
Holder, No. CV-10-02211, 2014 WL 5475097, at *11 (C.D. Cal. Oct. 29, 2014).
But Prasad’s motion sought only “to remove or discharge attorney of record,” and
in conjunction with Prasad’s other filings, identified specific problems Prasad had
with his particular existing counsel. Nowhere did the motion indicate a desire
altogether to waive Prasad’s right to a QR. So, liberally construed, Agyeman v.
INS, 296 F.3d 871, 878 (9th Cir. 2002), Prasad’s pro se filing was a motion to
terminate his existing QR and to then appoint a different QR. The BIA’s
interpretation of Prasad’s motion as a request for self-representation, relief that the
BIA could not possibly grant him under Franco-Gonzalez, was an abuse of
discretion. See Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014).
2. Citing the BIA Practice Manual, the BIA also indicated that the BIA
“does not accept pro se filings from represented aliens.” The Practice Manual does
not support that assertion. The Manual indicates that if “a represented alien wishes
to file a document without the assistance of his or her representative, the alien
should serve copies of that document on both DHS and the representative.” Board
of Immigration Appeals, Practice Manual 37 (Oct. 16, 2018). The manual thus
expects that the BIA will accept pro se filings from represented noncitizens. The
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BIA provided no other reason why it could not accept Prasad’s pro se filings.1
3. The BIA is “not free to ignore arguments raised by a petitioner,”
including claims of ineffective assistance. Coronado v. Holder, 759 F.3d 977,
986–87 (9th Cir. 2014) (quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th
Cir. 2005)); see also Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.
2007). Because of its erroneous procedural rulings, the BIA did not address at all
Prasad’s repeated claims that his QR provided ineffective assistance, including his
recitation of several specific reasons as to why he could not proceed with his
existing counsel. Those reasons included that his QR failed to introduce several
important pieces of readily available evidence, an assertion that, if true, could
strongly support Prasad’s ineffective assistance claim.
Because the BIA incorrectly construed and improperly refused to consider
Prasad’s motion to terminate his QR, and thus erroneously failed to address his
ineffective assistance claim, we grant Prasad’s petition for review, vacate the
removal order, and remand to the BIA to address the ineffective assistance
arguments made in Prasad’s pro se filings, including consideration of whether to
remand to the IJ for an evidentiary hearing on the ineffective assistance issue
and/or on the claims for relief from removal. We do not address Prasad’s
1
Although Prasad did not serve the filings on his QR, the BIA cured that oversight
by mailing a copy of the documents to the QR for him, and the BIA did not state
that it refused to accept Prasad’s filings because of any failure to serve them.
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remaining arguments on appeal, as the administrative record may change after the
agency considers his pro se filings. If, on remand, the BIA again denies Prasad’s
claims for relief without a further evidentiary hearing on the merits of those claims,
the BIA should reissue its removal order to permit Prasad to file a new petition for
review covering his claims for relief based on the current evidentiary record.
PETITION GRANTED; REMANDED.
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