657 F.3d 820 (9th Cir. 2011), 06-75319, Santiago-Rodriguez v. Holder

Docket Nº:06-75319.
Citation:657 F.3d 820
Opinion Judge:BERZON, Circuit Judge:
Party Name:Julio Cesar SANTIAGO-RODRIGUEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
Attorney:Michael Friedberg and Mathew Ho, Friedberg & Trombi, Thomas N. Saldin, the Law Offices of Saldin & Friedberg, Los Angeles, CA, for petitioner Julio Cesar Santiago-Rodriguez. James Arthur Hunolt, Andrew B. Insenga, and Rebecca Hoffberg Phillips, the Office of Immigration Litigation of the Civil Di...
Judge Panel:Before: BETTY B. FLETCHER, MARSHA S. BERZON, and CONSUELO M. CALLAHAN, Circuit Judges. Opinion by Judge BERZON; Dissent by Judge CALLAHAN. CALLAHAN, Circuit Judge, dissenting:
Case Date:September 09, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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657 F.3d 820 (9th Cir. 2011)

Julio Cesar SANTIAGO-RODRIGUEZ, Petitioner,

v.

Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06-75319.

United States Court of Appeals, Ninth Circuit.

September 9, 2011

Argued and Submitted Dec. 8, 2010.

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[Copyrighted Material Omitted]

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Michael Friedberg and Mathew Ho, Friedberg & Trombi, Thomas N. Saldin, the Law Offices of Saldin & Friedberg, Los Angeles, CA, for petitioner Julio Cesar Santiago-Rodriguez.

James Arthur Hunolt, Andrew B. Insenga, and Rebecca Hoffberg Phillips, the Office of Immigration Litigation of the Civil Division of the Department of Justice, Washington, DC, for respondent Eric H. Holder Jr.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073-819-676.

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Before: BETTY B. FLETCHER, MARSHA S. BERZON, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge BERZON; Dissent by Judge CALLAHAN.

OPINION

BERZON, Circuit Judge:

This case requires us to decide whether an alien in removal proceedings can withdraw his former attorney's admission of the Government's factual allegations when the propriety of the admission has been severely undercut by subsequent legal developments that may, in fact, mean that the admission was false.

FACTUAL AND PROCEDURAL HISTORY1

Julio Cesar Santiago-Rodriguez (" Santiago" ), a native and citizen of Mexico, lawfully entered the United States in 1991 and became a lawful permanent resident (" LPR" ) in June 1999. In December 1999, Santiago returned to Mexico to marry his fiancé e Maria Maravilla Romero (" Maravilla" ); they wed on December 21, 1999 in Villamar, Mexico. Following the wedding, Santiago and Maravilla traveled to Chiapas to spend time with Santiago's family.

At some point, Maravilla told Santiago that she would like to accompany him back to the United States— that is, to enter illegally. While the couple was in Chiapas, Santiago's brother, Luis, told Santiago the same thing. Santiago attempted to discourage both from entering the United States illegally, but to no avail. Accordingly, on or about January 6, 2000, Santiago, Maravilla, and Luis flew from Chiapas to Juárez, Mexico, which abuts El Paso, Texas. Santiago purchased the airline tickets from Chiapas to Juárez for Maravilla and himself, while Luis purchased his own ticket with money he borrowed from his aunt. While in Juárez, Santiago purchased a counterfeit I-551 (typically called a " green card" ) for Maravilla, and Luis purchased one for himself.

The following day, Santiago walked across the U.S.-Mexico border and proceeded to the offices of a travel agent in El Paso to meet up with his wife and brother, who had crossed the border with the aid of one or more coyotes (smugglers). Santiago testified that he did not pay the coyote(s), suggesting instead that Luis had done so. At the travel agency, Maravilla and Luis each purchased a ticket to fly to Los Angeles later that day. The record is unclear as to who purchased Maravilla's ticket, but Luis purchased his own.

The three then proceeded to the El Paso airport. According to Santiago, two Border Patrol agents in cowboy hats approached him as he was looking at the TV monitors displaying gate information in the airport lobby.2 After asking Santiago where he was going, one of the agents demanded Santiago produce his " papers" to " show you're not illegal." Santiago produced his I-551, but was detained in the airport terminal for approximately 20-30

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minutes while his brother and wife were separately questioned out of his earshot.

Thereafter, all three were handcuffed and led into a small room, where they were advised of their Miranda rights, and their bags were searched. During the bag search, the agents found documents establishing that Maravilla and Luis's I-551s were fake. Santiago stated that he had an attorney in Los Angeles, but was told that he could not talk to a lawyer until he had a hearing in immigration court. Santiago also was asked several questions about whether he had smuggled his brother and/or wife into the country. Santiago testified before the immigration judge (IJ) that he had a difficult time understanding the agent interrogating him, who spoke Spanish only haltingly. The record contains a document (a form I-215B) that purports to memorialize the interrogation, but the IJ disregarded it because she had concerns, including its lack of a certificate of translation, affecting its reliability.3

Following the interview, Santiago was issued a Notice to Appear (NTA). The NTA alleged that Santiago had " knowingly encouraged, induced, assisted, abetted, or aided" his wife and brother to enter the United States illegally, and accordingly charged him with being removable under 8 U.S.C. § 1227(a)(1)(A)4 and (a)(1)(E)(i).5 Pursuant to 8 U.S.C. § 1226, an Immigration and Naturalization Service (INS) agent 6 set Santiago's bond at $5,000 later that day.

Within seven to ten days after his arrest at the airport, and while he was still detained, Santiago met with Corine Dominguez, an El Paso-based attorney. They spoke for ten to twenty minutes, during which time, according to Santiago, Dominguez agreed " to defend [him]" and " to prove that [he] was innocent" in exchange for $200. Dominguez did not advise Santiago of the relief available to him and did not discuss admitting the allegations of the NTA or conceding the charges of removability.

Dominguez filed a motion for bond redetermination on January 18, 2000, requesting that Santiago's bond be reduced and representing that Santiago would be applying for cancellation of removal. Santiago

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was ineligible for this form of relief, as he had been an LPR for less than a year. See 8 U.S.C. § 1229b(a) (permitting cancellation of the removal of aliens who have been LPRs for at least five years and meet other requirements).

Dominguez's bond redetermination motion was unsuccessful, but Santiago eventually paid the $5,000 bond. The record is silent as to when Santiago was released on bond, but he met with Connexion Legal (" Legal Connection" ), a Los Angeles-based notario, 7 in late January or early February. Connexion Legal agreed to help Santiago with his immigration proceedings, initially by trying to have the case transferred to Los Angeles from El Paso. On February 3, 2000, someone from Connexion Legal mailed to the immigration court in El Paso a motion to change the venue of Santiago's immigration proceedings to Los Angeles. The first paragraph of the motion states that " [Santiago] admits to the allegations of the United Government [sic], conceding removability in this case." Although the motion purports to have been filed pro se by Santiago himself, Santiago says he did not sign it and that no one from Connexion Legal reviewed it with him or made him aware of its contents. Santiago also maintains that the motion's two signatures, purporting to be those of Santiago, are not his; the Government does not dispute this assertion, and a comparison of the signatures on the motion with Santiago's known signature supports it.

On February 22, 2000, the INS mailed a notice that it did not oppose Santiago's first motion to change venue. Two days later, Dominguez, apparently unaware of that motion, hand delivered a second motion to change venue, along with a motion to withdraw as Santiago's counsel, to the INS District Counsel in El Paso. This motion also states that Santiago " admits the allegations in the [NTA] and concedes that he is removable," and contains the boilerplate representation that Santiago would be applying for " Political Asylum, Voluntary Departure and/or other relief from removal available to him under the Immigration Laws of the United States."

The record is unclear as to which motion to change venue was granted or when it was granted, but Santiago's master calendar hearing was held in Los Angeles on April 26, 2000. Santiago was represented at this hearing and the four that followed by attorney Xavier Vega. Vega's services were apparently secured by Connexion Legal, to which Santiago paid $300 for each of Vega's appearances. Santiago only met with Vega just prior to each hearing, for a few minutes each time.

The master calendar hearing was continued until May 24, 2000. At the continued hearing, the IJ noted that Santiago had admitted the allegations and conceded removability in a prior motion to change venue. Vega so acknowledged, but stated that he would be seeking a waiver of the grounds of removability under 8 U.S.C. § 1182(d)(11). Section 1182(d)(11) provides that certain aliens guilty of smuggling their spouses, parents, or children into this country can apply for a waiver of that ground of removability. See 8 U.S.C. § 1182(d)(11); id. § 1227(a)(1)(E). The hearing was continued again until August 31, 2000, at which time Vega again acknowledged being aware of the concessions,

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but again asserted that Santiago was entitled to a waiver. The INS attorney, however, indicated at this hearing that the Government would be contesting Santiago's eligibility for a waiver in light of the concession that he had smuggled his brother into the United States, as no waiver is available to aliens who smuggle siblings. The hearing was continued once more, until January 17, 2001, at which time Vega acknowledged that the earlier concessions made Santiago ineligible for a waiver, and Santiago was ordered removed to Mexico. At no time did Vega seek to withdraw the concessions of Dominguez or Connexion Legal.

Santiago paid Connexion Legal to prepare his appeal to the BIA. Connexion Legal filed an appeal brief on Santiago's behalf; again, Santiago was not asked to review...

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