Escobar-Grijalva v. INS
| Citation | 2000 WL 300830,206 F.3d 1331 |
| Decision Date | 20 June 2000 |
| Docket Number | PETITIONER,No. 98-71469,ESCOBAR-GRIJALV,98-71469 |
| Parties | (9th Cir. 2000) JESUS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT |
| Court | U.S. Court of Appeals — Ninth Circuit |
Abbe Allen Kingston, Kingston, Martinez & Hogan, Santa Barbara, California, for the petitioner.
Heather R. Phillips, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-519-396
Before: Harry Pregerson, John T. Noonan, and Diarmuid F. O'Scannlain, Circuit Judges.
Opinion by Judge Noonan; Dissent by Judge O'Scannlain
Jesus Escobar-Grijalva petitions for a review of an order of the Board of Immigration Appeals (the Board) denying her asylum and withholding of deportation. Holding that she was denied the right to counsel given her by 8 U.S.C.S 1362, we grant her petition and remand for proceedings consistent with this opinion.
On October 24, 1996 a hearing on Escobar's application for asylum and withholding of deportation was held. She alleged persecution on account of her political opinion in Guatemala. She participated in the hearing through a Spanish-speaking interpreter.
The hearing began as follows:
JUDGE FOR THE RECORD
This is a continued proceeding at Los Angeles, California on October 24, 1996, in deportation proceedings in the matter of Jesus Escobar-Grijalva, A 72 519 396. On behalf the respondent, no attorney or representative has appeared. And on behalf of the Service, general attorney Mr. Alan Youtsler. The official Spanish interpreter and court clerk is Sinyova (phonetic sp.) Lopez.
Q. To the respondent, Ms. Escobar, it is now five after two, over an hour --
A. Oh, wait, wait, Your Honor. I apologize.
Q. Oh, thank you. Over an hour past the scheduled time that your case was scheduled for a hearing. We have waited your attorney. That is, at the last hearing -- well, previous hearings you have had various attorneys, Mr. Davis, Ms. McGuire, Ms. Scott, and you continue apparently to be represented by attorneys from that office. Who is your present attorney, because no one is with you.
A. It's a new American one.
Q. A new American one? What is the name of this attorney?
A. I don't know.
Q. Well, where is he, ma'am? I mean, you were sitting here and your attorney's not here.
A. (Indiscernible). He told me that he was already here. But I didn't see him.
Q. Have you even met this new attorney, yet, ma'am? This new American attorney as you described him to be?
A. Yes, I saw him.
Q. What is the name of this attorney? It looks like Jeremy Frost is his name. Is that his name?
A. (Indiscernible).
Q. A man, according to the writing in here, at least. He is still part of the same law office of McGuire and company. But, my question to you, ma'am, is where is any of your attorneys? Where are they?
A. I don't know, it -- can you allow me to go out and see.
Q. Well, ma'am, have you seen them today at all? Any of your attorneys?
A. Yes, I did see him.
Q. You saw Mr. Frost?
A. Yes.
Q. Or was this gentleman his assistant that you saw, ma'am? Don't get the two confused.
A. No, it (indiscernible).
Q. Okay, and he said he would be representing you? When did you last see him? When did you last see him ma'am?
A. I just saw him before I got in here. Would you please allow me to go out one moment.
Q. We'll have the court interpreter go out there and call his name.
(OFF THE RECORD)
(ON THE RECORD)
Back on the record. Off the record, the court interpreter would [list] the respondent's witness.
Q. Counsel, I understand you're Jeremy Frost, is that right?
A. That's correct, Your Honor.
Q. Now, ma'am, is this your attorney, Mr. Frost?
A. No.
Q. No?
A. It's another one.
Q. Okay, well, counsel, have you ever met your client?
A. No, I haven't, Your Honor. But I'm -- I'm from --
[MS. ESCOBAR TO JUDGE]
A. He hasn't seen me.
Q. Wait, wait. Let -- let her finish. What--what's that?
A. He -- it's another gentleman.
Q. Okay, well, Mr. Frost is from the law offices of Terance McGuire. He is one -- apparently one of the new attorneys.
A. Actually --
Q. This is not the person you -- you met outside? The new attorney you said -- the new American attorney?
A. With a black jacket.
Q. Counsel, do you have any idea who that is?
A. No, I don't, Your Honor.
Q. Is that one of your assistants maybe? One of your clerks or something?
A. I'm -- I'm not even with McGuire's office. I'm with Jim Valanti (phonetic sp.) -- Valinoti.
Q. You're with Valinoti? Well --
A. Yeah.
Q. -- (indiscernible) really confusing me, because your -- your notice comes in -- in McGuire's office's name, not Valinoti's. And is there some reason why you submitted a notice with another law firm? I mean, I'm really confused now. If you're with Mr. Valinoti's office, why are you submitting a notice under Mr. Terance McGuire's offices?
A. Your Honor, I'm a little confused too. And if I could call a recess for five minutes to just get it clarified. I -- I really don't have the answer.
Q. Have you met you client before today, counsel. I mean, right now, because she said she never saw you before until you walked in right now.
A. That's true, Your Honor. I've never met her.
Q. And you're going to be presenting her case?
A. Actually, I was hoping to have time, you know, before, but I just ran from this hearing to this hearing.
Q. I don't think he can represent her. He hasn't ever met her before. He has no idea what her case [is] about.
Q. Yeah, counsel, I -- at the minimum I'm a little concerned. First of all, whose law firm are you associated with?
A. Jim Valinoti, Your Honor.
Q. Jim Valinoti? Okay, so you're not associated with McGuire, Scott and Company?
A. No, Your Honor. But if I get a chance to talk with Jim, maybe I could get some clarification into who is actually handling this file.
Q. No, counsel. I'm going to ask the respondent what she wants.
A. Okay
Q. Ma'am, do you want this gentleman to represent you?
A. Those are my papers, but if the man is not her--
Q. Well, ma'am, let me tell you, I want to make sure you understand something. You're going to have basically three choices. And let me explain to you what they are. You're going to have the choice, number 1, of choosing this gentleman who claims he represents you, although never meeting you today yet, to represent and present you case today. Or, you have the choice of proceeding on your own and being your own attorney and representing yourself today and presenting your case. That's the second choice. Or, the third choice is, I will give you a continuance to get a new attorney to represent you. And when I say that, ma'am, if you get a new attorney, it's not going to be any of the following people. And I will not allow them to appear. And that includes Mr. Frost, Mr. McGuire, Mr. Alexander, Ms. Scott or Mr. Davis or Mr. Valinoti or Mr. Cassarian (phonetic sp.). None of those people. Because you see, supposedly this gentleman represents all of them as one of their attorneys. And I'm not about to continue a case for some -- one of them from the same law offices to walk in when they should have been ready today to present your case. So if you don't accept Mr. Frost from these law firms, none of those individuals will be representing you at your next hearing. Now if you get a new attorney unrelated to any of them, I don't have a problem. You're more than welcome to do that. But I'm not having one of those attorneys from the same law offices walk in and get a delay because they don't know what's going on with their cases. They're not going to get that continuance for that purpose. They're going to be removed as your attorney, and they're not going to represent you. So, ma'am, of those three choices, what would you like? Mr. Frost to present your case today? You to do it on your own? Or, you can find a new attorney completely separate and apart from any of these attorneys I've mentioned (indiscernible) who have filed notices with me.
A. It's okay. If he doesn't miss again, he doesn't, you know, show up again.
Q. So you want Mr. Frost to represent you? Is that what you said? Choice number 1?
A. I don't know what he said.
Q. That's what I don't know, ma'am. Is that choice number 1 you're selecting?
A. It's okay.
Q. That's fine, ma'am. We're going to proceed then.
The hearing continued, with Frost asking some questions. The IJ denied Escobar's application. She appealed to the Board on substantive grounds and because of such ineffective assistance of counsel as to deprive her of due process of law. The Board affirmed, ruling as to the latter claim that Escobar had "failed to satisfy all the requirements of an ineffective assistance of counsel" claim as set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd. 857 F.2d 10 (1st Cir. 1988).
Escobar petitions for review.
The Board relied wholly on its own precedent, Matter of Lozada, for rejection of Escobar's procedural claim. The affirmance of this decision by the First Circuit did not touch on any general procedural requirement necessary to bring an ineffective assistance of counsel claim. See Lozada v. INS, 857 F.3d 10 (1st Cir. 1988). Consequently, we address only the Board's precedent. The Board did lay down a rule: Appropriate disciplinary authorities must...
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