Calderon-Rosas v. Attorney Gen. U.S.

• Decision Date: 27 April 2020
• Docket Number: 19-2332
• Citation: 957 F.3d 378
• Parties: Sergio CALDERON-ROSAS, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

957 F.3d 378

Sergio CALDERON-ROSAS, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

19-2332

United States Court of Appeals, Third Circuit.

Argued January 23, 2020

Opinion filed: April 27, 2020

Petra D. Fist [ARGUED], P & D Solutions, 1209 Kirkwood Highway, Wilmington, DE 19805, Counsel for Petitioner

Christin M. Whitacre [ARGUED], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: GREENAWAY, JR., KRAUSE, and RESTREPO, Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.

I. FACTUAL BACKGROUND ¹

Calderon-Rosas, a Mexican national, initially entered the United States in 2001. He has lived in the United States since 2001. Though he and his wife lack lawful immigration status, their three children are U.S. citizens. Before he was detained, Calderon-Rosas had been a reliable and well-liked contractor in the Norristown, Pennsylvania, area for eleven years. His neighbors consider him "pleasant and sociable" and his children "well dressed and polite." JA 379. At least until their father’s detention by immigration authorities, the children were successful students at the local public schools, and the whole family was baptized in the Saint Patrick Church of Norristown, Pennsylvania, whose pastor considers them "hardworking, honest and compassionate." JA 370.

Yet in 2018, Calderon-Rosas was charged with a DUI—and while those charges were later dismissed, the Government nonetheless initiated removal proceedings. Desirous of remaining in this country, Calderon-Rosas hired attorney Douglas Grannan to represent him, and Grannan represented Calderon-Rosas at his removal hearing before an Immigration Judge (IJ). Grannan, however, was ill suited to the task: He would soon be disbarred for "multiple violations of the Rules of Professional Conduct in seven separate client matters" amounting to a "troubling pattern of neglect." Office of Disciplinary Counsel v. Grannan , No. 197 DB 2016, slip op. at 83 (Pa. Sup. Ct. Disciplinary Bd. Apr. 3, 2019), report and recommendation adopted per curiam , No. 2597 Disciplinary Docket No. 3 (Pa. July 9, 2019) (suspending Grannan); Office of Disciplinary Counsel v. Grannan , No. 177 DB 2019, slip op. at 1 (Pa. Sup. Ct. Disciplinary Bd. Oct. 18, 2019), report and recommendation adopted per curiam , No. 2660 Disciplinary Docket No. 3 (Pa. Oct. 18, 2019) (disbarring Grannan). The hallmarks of Grannan’s "pattern of neglect" were a lack of client communication, a failure to submit appropriate documents, and a wanton disregard for his client’s prospects of obtaining relief. See, e.g. , id. at 83, 85–93.

Grannan’s representation of Calderon-Rosas was as poor as his record would predict. Calderon-Rosas sought to present claims for asylum, pursuant to 8 U.S.C. § 1158, and cancellation of removal, pursuant to 8 U.S.C. § 1229b(b). Yet, although Calderon-Rosas spent over $7000 on Grannan’s services, Grannan never visited him in detention, never discussed his case with him over the phone, and never helped Calderon-Rosas understand the requirements for obtaining the relief he sought. Worse, Grannan failed to meaningfully pursue Calderon-Rosas’s asylum application despite telling Calderon-Rosas that he would do so. And most troubling of all, Grannan did not obtain adequate medical records of Calderon-Rosas’s children to support Calderon-Rosas’s cancellation of removal application.

Not surprisingly, given the record before him, the IJ denied relief on all claims. As for asylum, the IJ deemed Calderon-Rosas’s application abandoned, so the hearing proceeded only on Calderon-Rosas’s cancellation of removal application. As for cancellation of removal, the IJ announced at the outset of the hearing that he would focus on the eligibility requirement that the petitioner demonstrate that a U.S. citizen family member—in this case, Calderon-Rosas’s children—would suffer "exceptional and extremely unusual hardship," 8 U.S.C. § 1229b(b)(1)(D), if he were removed. In this respect, Grannan argued that Calderon-Rosas’s oldest son had asthma, but as the IJ readily noted, the documentation Grannan had filed reflected that condition had been long under control such that "overall [the children’s] health" appeared "good." JA 21. So while the IJ found that there "may even be extreme hardships" to Calderon-Rosas’s children if he were deported—among them a loss of childcare and a loss of family savings—he found that their suffering would not meet the high threshold of "exceptional and extremely unusual hardship" to qualify Calderon-Rosas for cancellation. JA 21. Based on the information then available to him, the IJ also held in the alternative that he would have declined Calderon-Rosas’s cancellation application as a matter of discretion.

After Calderon-Rosas’s claims were denied, he obtained new counsel and filed with the BIA both a motion to remand to the IJ based on his original attorney’s ineffective assistance before the IJ, and an appeal based on procedural due process violations alleged to have occurred during the IJ hearing. In support of the motion to remand and as required by regulation, 8 C.F.R. § 1003.2, Calderon-Rosas submitted new evidence, including medical records for his three children, which demonstrated that his older son suffered from PTSD and a persistent and chronic adjustment disorder with symptoms of depressed mood and anxiety; his daughter also suffered from depression; and his younger son had "special needs" due to a speech delay.

The BIA denied the motion to remand and dismissed Calderon-Rosas’s appeal. As to the motion to remand, the BIA explained only that it "conclude[d] that [Calderon-Rosas] ha[d] not established that he was prejudiced by his prior counsel [sic] alleged ineffectiveness" because he "ha[d] not established what additional corroboration he would have submitted that would have impacted the outcome of the case." JA 8–9. At the same time that it faulted him for failing to offer new evidence of corroboration, however, the BIA stated that "[t]o the extent that [Calderon-Rosas] seeks to submit new evidence on appeal in the form of evidence regarding his ineffective assistance of counsel claim ... we are without authority to consider new evidence offered for the first time on appeal." JA 9. The BIA also found Calderon-Rosas’s appeal of the IJ’s decision on procedural due process grounds meritless.

Calderon-Rosas timely petitioned for our review of both the BIA’s denial of his motion to remand and its dismissal of his appeal. He contends that the BIA abused its discretion in denying his motion to remand on grounds of ineffective assistance of counsel and that it erred in dismissing his procedural due process claims.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction over the motion to remand under 8 C.F.R. § 1003.2(a), and we have jurisdiction to review its denial under 8 U.S.C. § 1252(a). We review the denial of a motion to remand for abuse of discretion, but "questions of law, such as whether the BIA applied the correct legal standard in considering the motion to [remand] and the underlying claim of denial of due process, are ... reviewed de novo." Fadiga v. Att’y Gen. , 488 F.3d 142, 153–54 (3d Cir. 2007).

The BIA had jurisdiction over the appeal of the IJ’s decision under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction to review its dismissal under 8 U.S.C. § 1252(a). We review its legal rulings de novo and its factual findings for substantial evidence. Huang v. Att’y Gen. , 620 F.3d 372, 379 (3d Cir. 2010).

III. DISCUSSION

Calderon-Rosas contends that he was denied due process because he received ineffective assistance of counsel in proceedings before the IJ and because the IJ disregarded various procedural regulations. The Government opposes Calderon-Rosas’s claims on the merits, but also, as a threshold matter, challenges our jurisdiction, arguing that petitioners seeking discretionary relief cannot assert procedural rights under the Due Process Clause in this Court because they lack a protected liberty or property interest in such relief. Below, we first ascertain our jurisdiction² before addressing Calderon-Rosas’s ineffective-assistance and procedural due process claims.

A. Jurisdiction

Before we address the merits of Calderon-Rosas’s claims, we must address a threshold question: Do we have jurisdiction over ineffective assistance of counsel or procedural due process claims—both of which flow from the Fifth Amendment’s Due Process Clause in the immigration context, Fadiga , 488 F.3d at 155 —made by a petitioner seeking discretionary relief? The question arises because, in this context, "[o]ur jurisdiction ... is narrowly...