Avagyan v. Eric H. Holder Jr.

• Decision Date: 01 July 2011
• Docket Number: No. 06–73982.,06–73982.
• Citation: 646 F.3d 672
• Parties: Elza AVAGYAN, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

646 F.3d 672

11 Cal. Daily Op. Serv. 8298

2011 Daily Journal D.A.R. 9961

Elza AVAGYAN, Petitioner,

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

No. 06–73982.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 2010.Filed July 1, 2011.

Artem M. Sarian, Esq., Glendale, CA, for the petitioner.Edward John Duffy, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095–193–352.Before: BETTY B. FLETCHER, MARSHA S. BERZON, and CONSUELO M. CALLAHAN, Circuit Judges.Opinion by Judge B. FLETCHER; Dissent by Judge CALLAHAN.

OPINION

B. FLETCHER, Circuit Judge:

Elza Avagyan petitions for review of the Board of Immigration Appeals's (BIA's) denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). The denial of a motion to reopen is reviewed for abuse of discretion. Id. We grant the petition for review and remand to the BIA for further proceedings consistent with this opinion.

I.

Avagyan, a seventy-one year old native of Turkmenistan and a citizen of Armenia, came to the United States on a visitor's visa in March 2001. She overstayed her visa and filed an application for asylum and withholding of removal on October 16, 2001, stating that she had been persecuted in Armenia due to her political activities. The INS charged Avagyan with removal on January 2, 2002.¹ Avagyan's daughter, Naira Vartanyan, has lived in the United States since 1989, and became a naturalized United States citizen on March 28, 2003.

In April 2002, Avagyan retained Ron Martinez (a notario) ² and Joel Spence (an attorney) to represent her. Avagyan communicated primarily with Martinez, who told her that Spence would represent her for $2000. Avagyan first met Spence at a removal hearing on April 16, 2002. He did not ask her any questions about her case. The Immigration Judge (IJ) set Avagyan's removal hearing for November 5, 2003.

Avagyan had no contact with Spence between April 16, 2002 and November 3, 2003; during that time, she met Martinez once, for the sole purpose of paying him $750 in attorney's fees. On November 3, 2003, two days before Avagyan's scheduled hearing, she met Spence in the foyer of an office building. Spence asked Avagyan whether she had any money and whether she wanted to continue the case. When Avagyan insisted on proceeding with the hearing, Spence instructed her to meet him in court and “be ready.” He did not ask any questions about her case, describe the hearing process, help prepare Avagyan to testify, or provide information about asylum law.

Prior to November 3, 2003, Avagyan asked Martinez if Vartanyan, as a United States citizen, could help her stay in the country. Martinez told her that if the IJ denied Avagyan's application for asylum and withholding of removal, then Avagyan could get a green card because of Vartanyan's citizenship. Martinez never informed Avagyan that because she was in removal proceedings, the IJ had exclusive jurisdiction over any applications for adjustment of status. Nor did Martinez inform Avagyan that, even if she had a prima facie valid visa application pending, she would be subject to deportation and likely denied the opportunity to apply for adjustment of status if the IJ denied her asylum application.³

On November 5, 2003, after a hearing, the IJ issued an oral decision denying Avagyan's application for asylum and withholding of removal and ordering her removed to Armenia. After the IJ's decision, Avagyan retained Mr. Gevorg (whom she believed was an attorney specializing in immigration appeals) to file an appeal to the BIA and to file a petition for an immediate relative visa that she believed would, if granted, enable her to apply for adjustment of status. Avagyan filed a notice of appeal on November 24, 2003.

On November 25, 2003, one day after Avagyan appealed the IJ's decision, Vartanyan filed an immediate relative visa petition on Avagyan's behalf. Gevorg told Avagyan that she needed to wait until the petition was approved to apply for adjustment of status. Avagyan did what Gevorg advised: she waited.

The BIA denied Avagyan's appeal on February 11, 2005. Significantly, the BIA did not specifically inform Avagyan that a final order of removal had been entered. The order said, in its entirety: “The Board affirms, without opinion, the results of the decision below. The decision below, therefore, is the final agency determination.”

Prior to December 2005, Avagyan consulted with present counsel, who, on December 1, 2005, entered a notice of appearance and requested Avagyan's immigration file to review. Counsel was given access to the file at the immigration court on January 4, 2006. On January 17, 2006, he reviewed the file with Avagyan and informed her that Spence, Martinez, and Gevorg had rendered ineffective assistance. He also informed Avagyan that Gevorg was not an attorney. On March 16, 2006, Avagyan, through counsel, informed Spence of the allegations against him. Spence did not reply. On March 27, 2006, Avagyan filed a complaint against Spence with the state bar.

On April 5, 2006 (eighty-five days after reviewing her file with present counsel), Avagyan filed a motion to reopen with the BIA, claiming that Spence, Martinez, and Gevorg rendered ineffective assistance of counsel. Specifically, Avagyan alleged that Spence and Martinez rendered ineffective assistance in preparing her asylum and withholding of removal claims. Further, she alleged that Spence, Martinez, and Gevorg failed to advise her that she needed to file a visa petition and application for adjustment of status before her removal proceedings concluded.

On July 17, 2006, the BIA denied the motion as untimely. The Board held that Avagyan had complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),⁴ but found that Avagyan “ha[d] not acted with due diligence” and “failed to explain her 14 1/2 month delay in filing her present motion following the Board's dismissal of her appeal.” The Board noted that the motion to reopen was filed two and a half years after the end of Spence's representation, and concluded that Avagyan “knew what documents were submitted by [Spence] into evidence before the Immigration Judge.” It stated that Avagyan “fails [to] explain the delay in seeking new counsel if she was dissatisfied with the representation that she had previously obtained.” The BIA did not, however, specifically address Avagyan's diligence with respect to her claim that prior counsel ineffectively advised her on adjustment of status. Avagyan timely petitioned for review.

II.

“Although there is no Sixth Amendment right to counsel in a deportation proceeding, the due process guarantees of the Fifth Amendment ‘still must be afforded to an alien petitioner.’ ” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (quoting Singh v. Ashcroft, 367 F.3d 1182, 1186 (9th Cir.2004)). This court has long recognized that” [i]neffective 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.” Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)); see also Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.2004); Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003); Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999). If the ineffective assistance of an alien's counsel prevents him from timely filing a motion to reopen, counsel has prevented the alien from reasonably presenting his case and denied him due process. Consequently, we “recognize [ ] equitable tolling of deadlines and numerical limits on motions to reopen ... during periods when a petitioner is prevented from filing because of a deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud or error.” Iturribarria, 321 F.3d at 897.

The Government argues that recent Supreme Court decisions “have called sharply into question” the ability of aliens in removal proceedings to invoke equitable tolling based on ineffective assistance of counsel. Relying on Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), and Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007), the Government argues that because an alien in removal proceedings has no constitutional right to counsel, she cannot “assert a due process-based claim of ineffective assistance founded on her counsel's alleged failures in removal proceedings.”

A three-judge panel cannot reconsider or overrule circuit precedent unless “an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.” Norita v. N. Mariana Islands, 331 F.3d 690, 696 (9th Cir.2003) (emphasis removed, quoting United States v. Gay III, 967 F.2d 322, 327 (9th Cir.1992)); see also Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (holding that a higher court decision is controlling when it “undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”). We conclude that neither Wallace nor Lawrence undermine our existing precedent in this area, particularly in light of the Supreme Court's recent decision in Holland v. Florida, –––U.S. ––––, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010).

Wallace and Lawrence are “on point” only to the extent that they reiterate that equitable tolling is a remedy to be applied in exceptional circumstances. Wallace responded to the argument that the statute of limitations for a federal...