Monjaraz-Munoz v. I.N.S.

Decision Date28 April 2003
Docket NumberNo. 02-70227.,02-70227.
Citation327 F.3d 892
PartiesJuan MONJARAZ-MUNOZ, Petitioner. v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Karla L. Kraus, Law Offices of Karla L. Kraus, San Diego, CA, for the petitioner.

Jennifer A. Parker and Cindy S. Ferrier, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A70-175-552.

Before: HALL, THOMPSON, and BERZON, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge.

In this petition for review from a decision of the Board of Immigration Appeals (BIA), we deal with the extent to which ineffective assistance of counsel may constitute "exceptional circumstances ... beyond the control of the alien," 8 U.S.C. § 1229a(e)(1), requiring rescission of an in absentia deportation order and the reopening of immigration proceedings. Juan Monjaraz-Munoz ("Monjaraz") was ordered deported in absentia after he did not appear at his deportation hearing. He filed a motion to reopen the proceedings before the BIA. Monjaraz claims that he did not appear at the hearing because he was advised by an agent of his attorney to cross the border into Mexico the day before the hearing. A panel of the BIA found that Monjaraz had complied with the procedural requirements for making out a case of ineffective assistance of counsel required by its decision in Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA), aff'd, 857 F.2d 10 (1st Cir.1988). The panel, with one Board Member dissenting nevertheless held that Monjaraz's reasons for not showing up at his hearing did not amount to "exceptional circumstances... beyond the control of the alien." 8 U.S.C. § 1229a(e)(1). It therefore refused to rescind the deportation order and reopen the proceedings. Monjaraz timely petitioned for review before this court.

We have jurisdiction under 8 U.S.C. § 1252(b). Because we find that Monjaraz's reasons for failing to appear at his hearing constitute exceptional circumstances beyond his control, we GRANT the petition for review and REMAND for further proceedings.

BACKGROUND

In August 1996, Monjaraz was cleaning carpets in an apartment building in San Diego. When he went outside to look for a co-worker, he ran into someone who "looked like a policeman" who questioned him about his immigration status. He was detained by this person. After being detained, Monjaraz was issued an Order to Show Cause (OSC) by the Immigration and Naturalization Service ("INS") on August 6, 1996. In the OSC, the INS charged that Monjaraz had entered the United States without inspection. Monjaraz retained Carlos Batara ("Batara") as his attorney in November 1996.

Batara, after apparently consulting with Monjaraz, decided to move to terminate the proceedings because Monjaraz had a valid multi-entry visa. Batara reasoned that because Monjaraz had entered the United States using a valid visa, he could not have entered without inspection. The INS disputed the validity of Monjaraz's passport, visa, and the admission stamps on his passport.

In order to prove the validity of the visa, Batara took Monjaraz to the Mexican Consulate in San Diego. Officials at the Consulate told them that Monjaraz's Mexican passport appeared to be valid. Batara instructed his assistant and wife, Angelica Jimenez-Batara ("Jimenez"), to take Monjaraz to the San Ysidro port of entry to ask immigration officials there to assess the validity of Monjaraz's visa. An official told them that he thought that the visa appeared to be valid.

Batara then scheduled a meeting with officials of the INS to show them Monjaraz's passport and visa. The INS continued to dispute the validity of the passport and visa. Batara then contacted the Mexican Consulate who advised Batara to contact the American Consulate in Mexico, where Monjaraz apparently acquired his visa, and obtain Monjaraz's original visa application. Monjaraz later told Batara that his family could get the documentation to him within 7 days.

Monjaraz crossed the border into Mexico the day before his hearing and was not allowed back into the United States. Monjaraz contacted Batara to tell him he could not get back into the United States. Batara told the Immigration Judge ("IJ") at Monjaraz's hearing that Monjaraz was in Tijuana and could not cross the border to attend the hearing. Batara claimed that he had no idea why Monjaraz had crossed the border. The IJ ordered Monjaraz to be deported in absentia pursuant to 8 U.S.C. § 1229a(b)(5)(A). Since Monjaraz was not available to testify, the IJ could not find that Monjaraz had entered the country with inspection, as Monjaraz claimed. Batara filed a notice of appeal on behalf of Monjaraz. Batara did no more work on the case.

Monjaraz, on appeal, did not file a brief contesting the IJ's decision. Rather, he sought to have his deportation order rescinded on the ground that he failed to attend his hearing due to exceptional circumstances. In a sworn declaration, Monjaraz claimed that he left the country the day before the hearing because Jimenez, the wife and assistant of Batara, instructed him to do so. Monjaraz stated that Jimenez called him the day before the hearing and told him that she was acting pursuant to instructions from Batara. She told him "to leave the United States to Tijuana, Mexico to eat tacos." Then, Monjaraz was to immediately re-enter the United States using his visa. This, according to Jimenez, would prove to the IJ that his visa was valid.

Monjaraz's wife, Rosaura Servin ("Servin"), also submitted a sworn declaration. Servin claims she listened to the conversation between Monjaraz and Jimenez. Servin claims she heard Jimenez tell Monjaraz, "I want you to go to[Tijuana] and have some tacos and come back again so they can stamp your passport." Servin also claims to have asked Batara a few days after Monjaraz was detained at the border why he had advised Monjaraz to cross the border. Batara "kept quiet for a minute and told us to see about the passport because he did not think it was a good visa."

Copies of the declarations of Monjaraz and Servin were sent to Batara. Batara filed a declaration with the BIA in response to Monjaraz's allegations. Batara declares that he "never suggested, recommended, asked, or advised[Monjaraz] to personally obtain" records from the American Consulate in Mexico. Batara claims that he learned that Monjaraz was in Mexico the day before the hearing — the day that Monjaraz claims he left for Mexico. Batara says that "[a]t that point in time, I did not know why [Monjaraz] had traveled to Mexico and I did not why [sic] he had been detained." Batara says that he spoke to Servin several days after the hearing and he was confused by Servin's explanation of why Monjaraz went to Mexico.

Monjaraz filed a motion to reopen the proceedings with the BIA. The BIA denied the motion with one Board Member dissenting. The BIA held that Monjaraz had complied with its procedural requirements for a motion to reopen on the basis of ineffective assistance of counsel. The BIA went on to hold that the facts alleged by Monjaraz did not qualify as exceptional circumstances beyond his control. 8 U.S.C. § 1229a(e)(1).

STANDARDS OF REVIEW

We review the BIA's ruling on a motion to reopen for an abuse of discretion. Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). Questions of law are reviewed de novo, Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999), as are claims of due process violations in deportation proceedings. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000).

We review the BIA's findings of fact, including credibility findings, for substantial evidence and must uphold the BIA's finding unless the evidence compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Singh-Kaur v. INS, 183 F.3d 1147, 1149-50 (9th Cir.1999). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Under this "extremely deferential" standard, we "must uphold the BIA's findings unless the evidence presented would compel a reasonable finder of fact to reach a contrary result." Singh-Kaur, 183 F.3d at 1149-50 (emphasis in the original) (internal quotations and citations omitted).

DISCUSSION

Monjaraz undoubtedly complied with the three procedural requirements for stating a prima facie case of ineffective assistance of counsel under Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA), aff'd, 857 F.2d 10 (1st Cir.1988).1 First, Monjaraz filed an affidavit regarding his agreement with his attorney, Batara. Second, Batara was clearly informed of the allegations of ineffective assistance, as he responded to the allegations by filing his own affidavit with the BIA. Finally, a letter was sent to the California State Bar regarding Batara's alleged misconduct. The BIA recognized this but nevertheless denied the motion to reopen. The BIA held that while the procedural requirements for granting a motion to reopen based on ineffective assistance had been met, the substantive requirements had not. The BIA concluded that the facts alleged by Monjaraz did not constitute exceptional circumstances. In so concluding, the BIA failed to credit Monjaraz's version of the facts.

Exceptional Circumstances

An in absentia removal order shall be rescinded if the alien demonstrates that he failed to appear because of "exceptional circumstances." Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). The Immigration and Nationality Act defines exceptional circumstances as "circumstances (such as serious illness of the alien or serious illness or...

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