Hernandez v. Mukasey

• Decision Date: 30 April 2008
• Docket Number: No. 04-72696.,04-72696.
• Citation: 524 F.3d 1014
• Parties: Gerardo HERNANDEZ, Elizabeth Prado, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

524 F.3d 1014

Gerardo HERNANDEZ, Elizabeth Prado, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 04-72696.

United States Court of Appeals, Ninth Circuit.

Submitted February 12, 2008.^*

Filed April 30, 2008.

Meredith R. Brown of Glendale, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Richard M. Evens, and Paul Fiorino, of Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A74-797-178, A74-797-179.

Before: STEPHEN S. TROTT, RICHARD R. CLIFTON, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Gerardo Hernandez and Elizabeth Prado, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals' (BIA) decision denying their motion to reopen their deportation proceedings on the ground of ineffective assistance of counsel. Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. Petitioners contend they are entitled to raise an ineffective assistance of counsel claim, even though they concede they relied on an individual they knew was not an attorney. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We hold that knowing reliance upon the advice of a non-attorney cannot support a claim for ineffective assistance of counsel in a removal proceeding.

I. BACKGROUND

Petitioners are Mexican nationals who entered the United States without inspection in 1989. In an attempt to legalize their immigration status in the United States, they contacted Estela Rodriguez, an immigration consultant, in Los Angeles, California. Promising to file papers that would enable them to obtain legal permanent residency, Ms. Rodriguez instead prepared applications for asylum, which were denied at the administrative level. On October 9, 1996, petitioners were served with Orders to Show Cause and Notices of Hearing, alleging they were subject to deportation for entry without inspection under former Section 241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B), and setting an immigration court hearing. Petitioners subsequently withdrew their applications for asylum and applied for relief in the form of suspension of deportation.

Petitioners allege Ms. Rodriguez provided them with deficient assistance throughout their removal proceedings. They claim Ms. Rodriguez advised them that it was unnecessary to have an attorney present in court during their merits hearings. They also allege she advised them that it was unnecessary to call witnesses, provide expert testimony, or submit documents in support of their applications for suspension of deportation. Petitioners appeared pro se throughout their deportation proceedings.

During their deportation proceedings, the Immigration Judge (IJ) repeatedly asked petitioners if they wished to obtain counsel. Each time, petitioners affirmatively waived their right to obtain counsel. On at least two occasions, they were also provided with a list of attorneys who provided free legal services. When petitioners showed Ms. Rodriguez the list of free attorneys and discussed with her the possibility of retaining counsel, Ms. Rodriguez allegedly "tore up the list" and told them that "whatever she [said] was the same as what an attorney would tell [them]."

On August 9, 1999, the IJ pretermitted Hernandez's application for suspension of deportation. The IJ determined that Hernandez's conviction for domestic violence terminated his accrual of physical presence for purposes of suspension of deportation under the "stop-time rule" and that, as a result, he lacked the necessary seven years of physical presence in the United States. Hernandez's pro se appeal, allegedly prepared by Ms. Rodriguez, was dismissed by the BIA as untimely on December 17, 1999. His subsequent motion to reopen before the IJ, also allegedly prepared by Ms. Rodriguez, was denied by the IJ as untimely on March 7, 2001. The denial was affirmed by the BIA without an opinion on September 7, 2001.

On November 8, 1999, the IJ denied Prado's application for suspension of deportation on the ground that she had not shown the requisite level of hardship to herself or her U.S. citizen children. Prado filed a pro se appeal, allegedly prepared by Ms. Rodriguez. On January 8, 2003, the BIA affirmed the denial of suspension of deportation without an opinion. The BIA denied Prado's subsequent pro se motion to reconsider on the merits on July 16, 2003.

On October 14, 2003, almost four years after Hernandez's appeal was dismissed and ten months after Prado's appeal was dismissed, petitioners, now represented by current counsel, filed a motion to reopen. They argued that they were denied due process and are entitled to have their deportation proceedings reopened because of the deficient assistance they received from Ms. Rodriguez. On April 28, 2004, the BIA denied their motion, and petitioners timely filed this petition for review.

II. STANDARD OF REVIEW

This court reviews the BIA's ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Questions of law, as well as claims of due process violations, are reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000).

III. ANALYSIS

Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. They assert an ineffective assistance of counsel claim even though they concede they did not retain counsel. The BIA found that petitioners could not base such a claim on the deficient advice of a non-attorney, relying on our decision in Singh-Bhathal v. INS, 170 F.3d 943 (9th Cir.1999). In Singh-Bhathal, we held that reliance on the mistaken advice of a non-attorney immigration consultant was insufficient to demonstrate the "exceptional circumstances" necessary for reopening an in absentia deportation order. Id. at 946-47.

"Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985). Federal law guarantees an individual the opportunity to obtain counsel of his own choice in "any removal proceedings before an immigration judge." 8 U.S.C. § 1362. We have found that this statutory right stems from the Fifth Amendment's guarantee of due process in deportation proceedings. See Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006). Thus, if an individual chooses to retain counsel, his or her due process right "includes a right to competent representation." Id. (italics in original). If counsel's assistance is deficient, and prejudice can be shown, we have recognized an ineffective assistance of counsel claim in removal proceedings. See, e.g., id. at 590; Castillo-Perez, 212 F.3d at 526.

Ineffective assistance of counsel claims arise directly out of the duties and expectations created by an attorney's unique role in the legal system. The Supreme Court has recognized that, pursuant to the Sixth Amendment, a criminal defendant has a right to an attorney to ensure that he or she receives a fair trial. See Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("[T]his Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial."). In Strickland, the Court reasoned that this "presumption" was justified by the legal profession's particular "skill and knowledge," its professional standards, and its "norms of practice." Id. at 688, 104 S.Ct. 2052. Thus, where an attorney's performance was "outside the wide range of professionally competent assistance" and not "the result of reasonable professional judgment," see id. at 690, 104 S.Ct. 2052, the proper functioning of the adversarial process itself was called into question, and a criminal defendant was entitled to a remedy in the form of a new trial (assuming he had also demonstrated prejudice). Id. at 691, 104 S.Ct. 2052.

Although the right to counsel in removal proceedings is statutory, 8 U.S.C. §§ 1229a(b)(4)(A), 1362, and does not derive from the Sixth Amendment, the BIA has also recognized that an attorney's special competence and duties lie at the heart of ineffective assistance of counsel claims. In Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the BIA required that, to support a claim of ineffective assistance of counsel, an aggrieved party must: (1) submit an affidavit setting forth in detail the agreement entered into with counsel regarding the person's representation; (2) present evidence that counsel was informed of the allegations of ineffective assistance and given an opportunity to respond; and (3) either show that a complaint against counsel was filed with the proper disciplinary authorities or explain why no such complaint was filed. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (citing Matter of Lozada). These requirements were intended, in part, to "hold attorneys to appropriate standards of performance" in immigration proceedings, Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir.2003), and we have generally required aliens to comply with Lozada in support of this goal. See Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir.2003) (noting that the Lozada requirements have been adopted by this court).

Our decisions have also emphasized an attorney's unique role in removal proceedings. We have observed that "[t]he proliferation of immigration laws and regulations has aptly been called a labyrinth that only a lawyer could navigate." See Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005); see also Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir.2007) (noting that "the...