Castillo-Perez v. Immigration & Naturalization Serv.

• Decision Date: 11 May 2000
• Docket Number: No. 97-70548,N,CASTILLO-PERE,P,97-70548
• Citation: 212 F.3d 518
• Parties: (9th Cir. 2000) HUGOetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. o. 99-71069
• Court: U.S. Court of Appeals — Ninth Circuit

Page 518

212 F.3d 518 (9th Cir. 2000)

HUGO CASTILLO-PEREZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-70548, No. 99-71069

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 16, 2000

Filed May 11, 2000

[Copyrighted Material Omitted]

COUNSEL: Helen A. Sklar, Sherman Oaks, California, Robert Jobe (argued), San Francisco, California, and for the petitioner in both No. 97-70548 and No. 99-71069.

Ann Varnon Crowley, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent in No. 97-70548.

Gretchen M. Wolfinger, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent in No. 99-71069.

On Petitions for Review of a Decision of the Board of Immigration Appeals

Before: Henry A. Politz,¹ Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

OPINION

HAWKINS, Circuit Judge:

We heard these closely related petitions for review together and now formally consolidate them for disposition. Hugo Castillo-Perez ("Castillo"), a native and citizen of Mexico, faces deportation under section 241(a)(1)(B) of the Immigration and Nationality Act ("INA" or the "Act"), 8 U.S.C. S 1251(a)(1)(B) (1994), for entering the United States without inspection. Castillo appeals both the Board of Immigration Appeal's ("BIA's") denial of his request to remand his petition for suspension of deportation under section 244(a)(1) of the INA, 8 U.S.C. S 1254(a)(1) (1994), to an Immigration Judge ("IJ") (No. 97-70548), as well as the BIA's denial of his motion to reopen deportation proceedings, pursuant to 8 C.F.R. S 3.2 (No. 99-71069). In both petitions, Castillo seeks the opportunity to apply for suspension of deportation in light of his contention that he was subject to ineffective assistance of counsel at the underlying deportation proceeding.

Because Castillo has presented a valid, even compelling, claim of ineffective assistance of counsel, we grant the first petition for review (No. 97-70548) and remand the case to the BIA with instructions to order a new hearing before an IJ so that Castillo may apply for suspension of deportation under the law as it existed at the time of his initial hearing.

BACKGROUND

Castillo illegally entered the United States from Mexico in March of 1987. Since that time he has maintained a continuous and otherwise lawful presence here. He lives with his family, which consists of his wife and three sons, two of whom are U.S. citizens. Castillo is also the owner of a furniture finishing business. He claims that he left Mexico after he and his wife received threats on their lives for his activity as a member of the opposition party, Partido Accion Nacional ("PAN").

In 1992, Castillo applied for, and was denied, asylum and withholding of deportation. On February 25, 1994, the Immigration and Naturalization Service ("INS" or the "Service") placed Castillo in deportation proceedings under an Order to Show Cause pursuant to section 241(a)(1)(B) of the Act. Prior to his hearing date, Castillo obtained the services of Mejia Immigration ("Mejia"), a business that held itself out as a provider of immigration legal services. Mejia instructed Castillo to go to his first hearing, scheduled for April 26, 1994, where he would meet his attorney, Jeffrey Portnoy ("Portnoy").

At the April 26 hearing, Castillo, represented by Portnoy, admitted the charges in the Order to Show Cause and conceded that he was deportable. Castillo requested, and was granted, an opportunity to submit an application for asylum and withholding of deportation, and, alternatively, an application for suspension of deportation and for voluntary departure under section 244(a)(1) of the INA, 8 U.S.C. S 1254(a)(1) (1994).² The IJ set a date for a hearing on the applications for July 28, 1994.

Additionally, the IJ explicitly advised Castillo and Portnoy that the applications were to be submitted before the close of business on May 26, 1994. The IJ admonished Castillo and his attorney that "[i]f no application is submitted by that date, the Court will deem . . . [the] applications to be abandoned and we'll proceed without further notice to the parties and simply enter . . . [a deportation] order in this case." The IJ instructed Portnoy to advise Castillo of these instructions and asked Castillo if he understood what had transpired, to which Castillo answered, "Yes."

According to Castillo, he called Mejia at least four times between the hearing date and May 26, 1994. Each time he spoke with a woman named Nora. During the last of these phone conversations, Nora told Castillo that his applications had in fact been filed.

On July 28, 1994, Castillo went to his hearing where he found out that Portnoy had still not filed the application for suspension of deportation, much less submitted it before the May 26 deadline. Accordingly, the IJ deemed the application abandoned pursuant to the court's previous order as well as 8 C.F.R. S 3.31(c).³ Portnoy made several entreaties to the IJ to reconsider his ruling and allow him to file the application. All his requests were rejected.

Castillo thereafter obtained new counsel and filed a "Combined Motion to Reopen (Remand) and Brief on Appeal " with the BIA on August 24, 1995. Castillo argued that, in light of his counsel's ineffective assistance (failure to timely file the application) and the IJ's refusal to allow Castillo to file an application at the hearing and to reconsider his decision denying Castillo an opportunity to submit a late application, the case should be remanded to the IJ to permit Castillo to apply for suspension of deportation. On April 15, 1997, the BIA rejected Castillo's combined motion and appeal. Castillo then filed a petition for review of the BIA's decision with this court.

On July 14, 1997, Castillo also filed a motion to reopen deportation proceedings with the BIA, alleging that his due process rights were violated through Portnoy's failure to provide effective assistance. Castillo then filed a motion with this court to stay the instant proceedings pending a ruling on his July 14, 1997 motion to the BIA. On October 16, 1997, this court denied the motion to stay this appeal.

On July 27, 1999, the BIA denied Castillo's motion to reopen. The BIA held that Castillo had established a prima facie claim of ineffective assistance of counsel. However, the BIA noted that Castillo was required to establish that he was prima facie eligible for relief in order to reopen his deportation proceedings and concluded that he could not do so because the law had changed in the intervening period and, as a result, he no longer met the seven year continuous physical presence requirement for suspension of deportation. Under the old rule, which was in effect at the time of his hearing, the seven years were counted from the date of entry up to the date on which an application for suspension of deportation was filed. The BIA held that under the new statutory scheme established by IIRIRA and the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub.L. 105-100, Title II, 111 Stat. 2193 (1997), the seven years are counted from the date of entry up to the date on which an order to show cause issues. See S 303(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), codified at 8 U.S.C. S 1229b(d)(1) (1999), and S 309(c)(5)(A) of IIRIRA, as amended by S 203(a)(1) of NACARA. It is undisputed that Castillo met the residency requirement under the old law. The BIA found, however, that he failed to satisfy the new statutory requirement and was therefore unable to establish a prima facie case for the relief that he sought.

The BIA concluded that NACARA's new timing rule applied retroactively and was triggered by a general order to show cause. Because Castillo had been served with an order to show cause approximately three weeks before he would have fulfilled the seven year requirement under the new law, the BIA held that, under its interpretation of IIRIRA and NACARA, he was now ineligible for suspension of deportation and therefore not entitled to have his deportation proceedings reopened. Castillo's petition for review of this decision constitutes the second part of this combined appeal. Because our decision to grant Castillo's petition for review is based on the BIA's dismissal of his motion to remand (not the motion to reopen), and because we conclude that, in light of the violation of Castillo's constitutional rights that occurred at his hearing, due process requires that he be afforded the benefit of the law that was applicable at the time of that hearing, we decline to exercise our discretion to consider the BIA's holding that NACARA's timing rule is triggered by an order to show cause and should generally apply retroactively.

STANDARD OF REVIEW

The BIA's denial of a motion to remand is reviewed for abuse of discretion. See Konstantinova v. INS , 195 F.3d 528, 529 (9th Cir. 1999). Claims of due process violations in deportation proceedings are reviewed de novo, see Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996), as are the BIA's determination of purely legal questions. See, e.g. , Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998).

ANALYSIS

I. Jurisdiction

Prior to the passage of IIRIRA, most orders of deportation were subject to direct judicial review. See INA S 106(a), 8 U.S.C. S 1105(a) (repealed 1996). In 1996, Congress passed IIRIRA, which substantially restricted the scope of judicial review. Of importance to this case, section 309(c)(4)(E) of IIRIRA, which governs requests for suspension of deportation made pursuant to section 244 of the INA, provides that "there shall be no appeal of any discretionary decision under . . . section 244 of the Immigration and Nationality Act."

Section 309(c)(4)(E) is part of the transitional rules of...