Pleitez-Lopez v. Barr

Citation935 F.3d 716
Decision Date23 August 2019
Docket NumberNo. 16-73656,16-73656
Parties Luis Uriel PLEITEZ-LOPEZ, aka Luis Raul Pleitez-Rios, Petitioner, v. William P. BARR, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Shawn J. Beam (argued), Los Angeles, California, for Petitioner.

Jane T. Schaffner (argued), Trial Attorney; Douglas E. Ginsburg, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX9-371

Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,* District Judge.

GRABER, Circuit Judge:

Petitioner Luis Pleitez-Lopez seeks review of the Board of Immigration Appeals' decision affirming the immigration judge's ("IJ") denial of a continuance for Petitioner to update his fingerprints with the Department of Homeland Security ("DHS"). Petitioner did not update his fingerprints because his lawyer advised him, incorrectly, that he was not required to do so. He contends that his reliance on his lawyer's advice was reasonable and constituted "good cause" to grant a continuance under 8 C.F.R. § 1003.29. We agree and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, a native and citizen of Guatemala, entered the United States in 2002 without being admitted or paroled. In August 2012, the government placed Petitioner in removal proceedings. Petitioner conceded removability and sought various forms of relief.

Petitioner originally provided the required fingerprints to DHS in December 2013, before his first merits hearing. At that hearing, Petitioner's lawyer sought a continuance to file for cancellation of removal; he had learned only recently that Petitioner might meet the residency requirement for that form of relief. The IJ granted the continuance.

At a later hearing, the IJ accepted Petitioner's application for cancellation of removal and reset the case for a merits hearing in September 2014, when Petitioner's fingerprints still would have been valid.1 But, at the September hearing, the IJ reset the merits hearing to May 2015 because he had "to do another case." After resetting the hearing date, the IJ (through an interpreter) instructed Petitioner that he must have his fingerprints retaken 60 days before the May hearing or the IJ would find that Petitioner had abandoned his applications for relief. The government's lawyer gave Petitioner a written set of fingerprint instructions, and Petitioner confirmed to the IJ that he understood the fingerprint requirement.

When the May 2015 hearing arrived, Petitioner had not provided updated fingerprints to DHS. His lawyer's office, operating under the erroneous belief that DHS fingerprints remained valid for 18 months, told Petitioner that he need not submit updated fingerprints to DHS before the May hearing. Petitioner had, however, recently provided updated fingerprints to the California Department of Justice. Thus, Petitioner mistakenly believed that he had complied with the fingerprint requirement, telling the IJ: "I have to repeat this again, that I talked to my attorney and he said to me, ‘These are the ones you need to take.’ "

In light of the erroneous legal advice, Petitioner's lawyer requested a "brief continuance" for Petitioner to provide updated fingerprints, but the IJ denied the continuance. The IJ repeatedly expressed disbelief that Petitioner had relied on his lawyer's advice over the IJ's contrary instructions at the earlier hearing. "A misunderstanding! I told him, very clearly gave him—have [sic] the trial attorney give him written instructions and told him to follow those instructions." "Who does he believe, the judge or the lawyer? ... You shouldn't have to even think about this."

The IJ held that Petitioner lacked good cause for failing to update his fingerprints, because Petitioner was "not reasonable in disregarding what the court instructed him to do even if his counsel gave him other instructions." The IJ also found that Petitioner's failure to obtain updated fingerprints burdened the government because, if DHS could not perform the corresponding background investigation, the government could not prepare adequately for the merits hearing. (But the government did not object when Petitioner requested a continuance.) The IJ deemed Petitioner's applications abandoned and granted him voluntary departure to Guatemala.

The BIA affirmed the IJ's decision that Petitioner lacked good cause for failing to update his fingerprints. According to the BIA, Petitioner lacked good cause because the IJ "properly advised [Petitioner] of his obligations to comply with the biometric processing requirements and the consequences for failing to do so." Petitioner timely sought our review.

STANDARD OF REVIEW

"Where, as here, the BIA reviewed the IJ's factual findings for clear error, and reviewed de novo all other issues," we limit our review to the BIA's decision, except to the extent that it expressly adopted the IJ's opinion. Singh v. Whitaker , 914 F.3d 654, 658 (9th Cir. 2019). We review for abuse of discretion an agency's denial of a continuance. Malilia v. Holder , 632 F.3d 598, 602 (9th Cir. 2011).

DISCUSSION

Under Cui v. Mukasey , 538 F.3d 1289, 1295–96 (9th Cir. 2008), "it is clearly an abuse of discretion for an IJ to deny a request from an otherwise diligent applicant for a short continuance to submit fingerprints." That holding alone might resolve this case (despite Cui 's statement that "there are no bright-line rules for deciding when an IJ's denial of a continuance warrants reversal"). Id. at 1295. But Cui instructs us to consider four factors to assess whether the denial of a continuance constituted an abuse of discretion: "(1) the importance of the evidence, (2) the unreasonableness of the immigrant's conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted." Id. at 1292.

The BIA considered only the unreasonableness of Petitioner's conduct and did not address the other factors or adopt the IJ's finding of a burden to the government. We hold that the BIA's decision to deny a continuance was an abuse of discretion in two ways. The BIA failed to analyze all the Cui factors and, in addition, analyzed the unreasonableness of Petitioner's conduct in an arbitrary and irrational manner. See Hernandez-Velasquez v. Holder , 611 F.3d 1073, 1077 (9th Cir. 2010) ("An error of law is an abuse of discretion."); Avagyan v. Holder , 646 F.3d 672, 678 (9th Cir. 2011) ("The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law." (internal quotation marks omitted)). We turn next to the Cui factors.

First, the fingerprint evidence was vital to Petitioner's applications because he could not obtain relief without an updated fingerprint check. See Cui , 538 F.3d at 1292–93 ("Thus, when the IJ denied her request for a continuance to resubmit her fingerprints, he effectively pretermitted any hope Cui had of obtaining relief. Her case was over.").

Second, Petitioner acted reasonably in relying on his lawyer's advice that he did not need to update his fingerprints with DHS.

For the alien unfamiliar with the laws of our country, an attorney serves a special role in helping the alien through a complex and completely foreign process. It is therefore reasonable for an alien to trust and rely upon an attorney's advice to such an extent that if an alien fails to show up to a hearing because of an attorney, we can say that this is an exceptional circumstance "beyond the control of the alien." 8 U.S.C. § 1229a(e)(1).

Monjaraz-Munoz v. INS , 327 F.3d 892, 897 (9th Cir. 2003). Likewise, if an alien fails to provide updated fingerprints to DHS "because of an attorney," id. , the alien's reliance on the lawyer's advice may constitute the requisite "good cause" for a continuance under 8 C.F.R. § 1003.29. Here, because the lawyer's bad advice post-dated the IJ's instructions, Petitioner's reliance on the later advice was especially reasonable. For example, the fingerprint requirements might have changed since his last hearing, including by lengthening the period during which fingerprints were valid or by allowing the California Department of Justice to send fingerprints to DHS.2 If the lawyer's bad advice had preceded the IJ's instructions, we might...

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8 cases
  • Peters v. Barr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 2, 2020
    ...lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer. See Pleitez-Lopez v. Barr , 935 F.3d 716, 720 (9th Cir. 2019) ; Monjaraz-Munoz v. INS , 327 F.3d 892, 897 (9th Cir. 2003). If the advice turns out to be erroneous and results in th......
  • Aguayo v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 18, 2022
    ...arbitrary or irrational for the BIA and IJ to determine it was "speculative" whether the I-130 denial would be overturned. See Pleitez-Lopez, 935 F.3d at 719 ("The BIA abuses its discretion when its decision arbitrary, irrational, or contrary to law." (citation omitted)). The BIA's decision......
  • Aoraha v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 21, 2021
    ...an asylum application and gave petitioners clear instructions to return with a completed asylum application, cf. Pleitez-Lopez v. Barr, 935 F.3d 716, 719-20 (9th Cir. 2019), yet petitioners failed to provide a completed asylum application (or evidence of filing such anapplication) at the se......
  • Moreno v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 30, 2022
    ...in part and DISMISS in part. 1. We review an agency's denial of a motion for continuance for abuse of discretion. Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019). The BIA did not abuse its discretion by affirming the IJ's denial of Moreno's motion for an additional continuance. In ......
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