Barroso v. Gonzales

• Decision Date: 18 November 2005
• Docket Number: No. 03-72552.,03-72552.
• Citation: 429 F.3d 1195
• Parties: Jose Juan Martinez BARROSO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1195

429 F.3d 1195

Jose Juan Martinez BARROSO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-72552.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2005.

Filed November 18, 2005.

Ricardo Alberto Figueroa, Long Beach, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General; Robert M. Loeb, Attorney; Charles W. Scarborough, Attorney; Appellate Staff Civil Division, Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before DONALD P. LAY,^* REINHARDT, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge.

Jose Juan Martinez Barroso ("Barroso") petitions this court for review of a Board of Immigration Appeals ("BIA") order denying his motion to reconsider its previous denial of his appeal. Barroso's motion to the BIA alleged ineffective assistance of counsel and the denial of Barroso's right to counsel of his choice. The BIA denied Barroso's ineffective assistance of counsel claim, but did not address his denial of counsel claim. In addition, the BIA denied Barroso relief because he had failed to depart within his voluntary departure period. We hold that where an alien files a timely motion to reconsider before his voluntary departure period has expired, his voluntary departure period is automatically tolled while he is awaiting a decision from the BIA on his motion. We also hold that the BIA abused its discretion in failing to address Barroso's denial of counsel claim. Accordingly, we remand to the BIA for a determination of whether Barroso was denied his statutory right to counsel of his choice.¹

I. BACKGROUND

Barroso is a native of Mexico who entered the United States in 1985. In 1998, he decided, in his words, to "put an end to his unregulated stay in the United States" and went in search of an attorney. He made the ill-fated choice of retaining Abad "Nork" Cabrera ("Cabrera"). Although Cabrera told Barroso that he was an attorney, he was not; instead he was a "notarial," or an immigration consultant. These people, also called "notarios," are notorious in Southern California for preying on the immigrant community.² The Immigration Judge ("IJ") in this case went so far as to call them "poison."

Throughout Barroso's case, he thought that Cabrera was his lawyer. He retained Cabrera, provided him with all of his documentation, consulted with him, and paid him for legal services. He was under the impression that the other attorneys he met on the courthouse steps who appeared in immigration court on his behalf all worked for Cabrera. Barroso may have had licensed lawyers appear with him in court, but all of his legal advice came from Cabrera. Indeed, the last two lawyers who "represented" him did not speak Spanish and, as Barroso does not speak English, they did not communicate at all.

The first thing Cabrera told Barroso to do was to file an application for political asylum. This advice was inexplicable, given that Barroso had no fear of returning to Mexico. The consequence of this advice, however, was that he came to the attention of the Immigration and Naturalization Service ("INS"), which served him on May 22, 1998, with a Notice to Appear before the immigration court.

At his first hearing, Barroso was represented by Xavier Vega ("Vega"), an attorney provided by Cabrera. During that hearing, Barroso withdrew his asylum application and indicated that he wanted to apply for cancellation of removal and, in the alternative, for voluntary departure. Vega was supposed to file the application for cancellation of removal on September 9, 1998. However, on that date, Vega was absent from court and had not filed it. Cabrera had obtained another attorney for Barroso, Ronald Peake ("Peake"), who asked for a continuance in order to do so. The continuance was granted. To this end, Barroso supplied Cabrera with documentation about his qualifying relatives, physical presence, and moral character; he was told that an application on his behalf would be filed on time.

On the appointed date, February 19, 1999, Barroso arrived in court as scheduled, but Peake failed to appear. Peake had also neglected to file the application for cancellation of removal. The IJ continued the hearing until March 12, 1999, but stated that the application must be filed by that date.

On March 12, 1999,³ Ramin Ghashghaei ("Ghashghaei"), appeared on behalf of Barroso. Although the record does not reflect what occurred just prior to the hearing, we know that there was some confusion about the representation because the IJ told Ghashghaei, "Your client doesn't know that you have replaced Mr. Peake." At this time, Ghashghaei filed the application for cancellation of removal.⁴ The IJ set the next hearing date for October 12, 1999. However, on July 6, 1999, the court sent a notice that the hearing had been rescheduled to February 17, 2000. There is no transcript in the record of a hearing on February 17, 2000 having taken place. However, the record shows that on February 17, 2000, a notice was mailed to Ghashghaei, but not Barroso, stating that the next hearing was scheduled for January 23, 2001. The record also shows that on February 18, 2000, Ghashghaei submitted a motion for continuance, requesting that the court re-schedule the January 23rd hearing because of a conflict. A notice that the hearing had been rescheduled for one day later, January 24, 2001, was mailed to Ghashghaei, but not to Barroso.⁵

At the hearing on January 24, 2001, Ghashghaei asked to be relieved as counsel to Barroso, because Barroso had retained new counsel due to communication problems with Ghashghaei. The IJ dismissed Ghashghaei and asked Barroso why his new counsel was not present. Barroso explained that Ghashghaei had initially refused to give him the notice of the hearing when he had asked for it. Barroso testified that Ghashghaei "just recently" gave him notice that the hearing was on January 24th, by which time "it was too late" for his new attorney to be able to attend. The IJ refused to believe Barroso, stating that Barroso had known about the hearing for over a year since he had been present at the February 17, 2000 hearing. However, Barroso's wife later testified that she and her husband had not come inside the courtroom on February 17, 2000. She explained that they waited outside and when Ghashghaei emerged from the courtroom, he told them he had obtained an extension but never gave them notice of the hearing date until the night before the January 24th hearing.

The IJ also pressed Barroso on why he did not simply retain Ghashghaei as his lawyer. Barroso explained that he could not communicate with Ghashghaei because of the language barrier and that Ghashghaei had never given Barroso an appointment so that Barroso could bring in his documents and speak with him. The IJ again did not believe Barroso's claim, stating that Ghashghaei is "a conscientious and responsible attorney."

Despite Barroso's explanation of why he had discharged Ghashghaei and why his new counsel was unable to attend the hearing, and despite his expressed desire to be represented by his new attorney, the IJ refused to grant Barroso a continuance so that he could appear with his new attorney:

JUDGE to MARTINEZ BARROSO

Q.... This case has been continued again and again. You have changed lawyers twice. And you have always until the last minute before your hearing. So I don't know exactly what your intention is, but it seems to me that what you are doing [sic] to do is delay the case. So I am not going to give you any further continuances. Your case will be heard today. And it will either be granted or denied today.

A. The only thing if you can give me a last chance. I am not asking much, a month to two months so I can bring everything so I can present it for this case.

Q. I can't do that. The reason you have gotten so many long continuances is because my calendar right now is out to September 2002. I can give you a hearing earlier than that only on an emergency basis. And the only emergency basis in this Court is asylum cases or cases where people are about to lose eligibility for relief which is not your situation. So I am not going to give you a continuance. You will have your case today. You can testify and you can call your wife as a witness if you want.

At that point, Barroso was immediately sworn in to testify and forced to proceed without an attorney or any knowledge of the immigration laws. Because Barroso's new attorney had assured him that he would be able to obtain a continuance, Barroso did not have any of his supporting documentation or witnesses, other than his wife, with him that day.

Barroso testified that he first came to the United States in 1985. In 1988, he was convicted of drunk driving. He was arrested when he attempted to enter the United States illegally in 1989, served forty-five days in jail, and was deported to Mexico.⁶ He returned illegally in 1990. Barroso married Juana Gomez ("Gomez"), a permanent resident of the United States, in 1998. Gomez was awaiting her citizenship papers at the time of the January 24, 2001 hearing, so she had not filed a motion on his behalf for adjustment of status, on the advice of "notarial" Cabrera. Barroso's three children were born by a former spouse, now deceased, in the United States.

During the hearing it became clear that Barroso had believed the notarial, Cabrera, to be his lawyer. The IJ responded to the fact that Barroso had been defrauded by Cabrera in the following way:

The people you have chosen to deal with have no legal obligations. If they cheat you, that is just too bad. There is nothing you can do about it. And you would have been much wiser to listen to your attorneys instead of listen to notarials. And you may pay the price for that.

The IJ denied Barroso's application for cancellation of removal. He recited the four criteria for eligibility for...