Flores-Panameno v. U.S. Attorney Gen., 17-14749

• Decision Date: 22 January 2019
• Docket Number: No. 17-14749,17-14749
• Parties: Elida A. FLORES-PANAMENO, Christian Alexander Panameno-Flores, Madeline Batsave Panameno-Flores, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

913 F.3d 1036

Elida A. FLORES-PANAMENO, Christian Alexander Panameno-Flores, Madeline Batsave Panameno-Flores, Petitioners,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 17-14749

United States Court of Appeals, Eleventh Circuit.

January 22, 2019

Jaime Jasso, Law Office of Jaime Jasso, Westlake Village, CA, for Petitioner.

Laura Halliday Hickein, Kristin Moresi, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, OIL, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX2-182

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge:

Elida Antonia Flores-Panameno petitions for review¹ of the Board of Immigration Appeals’s ("BIA") dismissal of her appeal. In short, Flores-Panameno asserts she received ineffective assistance of counsel because her former attorney misled her into accepting voluntary departure by telling her she would immediately be deported if she did not accept it. She filed a motion to reopen on that basis. The immigration judge ("IJ") denied that motion. He found her acceptance of voluntary departure was truly voluntary, despite the ineffective assistance of counsel, because he had himself gone through what he deemed to be appropriate procedures at the departure hearing to ensure that was so.

We lack a transcript of the hearing in question, hampering our ability to decide this petition. We conclude Flores-Panameno bore the burden of producing any such transcript. Because she did not produce a transcript, we find that we may rely on the IJ’s reconstruction of the record. In this case, however, the IJ’s reconstruction may be incomplete. Accordingly, we are unable to assess fully Flores-Panameno’s voluntariness. We therefore grant the petition and remand to the BIA to determine the full scope of the IJ’s inquiry into voluntariness, as set forth in more detail below.

I.

A.

On or about December 5, 2014, Flores-Panameno and her two minor children, natives of El Salvador, entered the United States. Two days later, Flores-Panameno was issued a Notice to Appear for being an alien in the United States without being admitted or paroled. After she retained counsel, who secured a transfer of venue to Atlanta and a continuance, a master calendar hearing was scheduled for February 11, 2016.

The record does not expressly reveal what happened at the February hearing, although the events of that hearing remain relevant. The next thing we know is that, at the March 15, 2016, hearing, Flores-Panameno requested pre-conclusion voluntary departure and signed a declaration regarding non-coercion. The declaration required her to acknowledge (among other things) that she admitted to all charges/conceded to removability, that the only relief she sought was voluntary departure, that she was not coerced, and that she waived all rights to appeal. If Flores-Panameno filed a motion to reconsider, she acknowledged, the grant of voluntary departure would be terminated automatically and "the alternative order of removal [would] take effect immediately." The IJ granted her request and gave her until July 13, 2016, to depart. There is no transcript in the record of the March 15, 2016, hearing, but there are handwritten notes on the IJ’s order that read, "Advised orally" and "Knowing and voluntary request for VD."

B.

On July 12, 2016, Flores-Panameno, through new counsel, moved to reopen the proceedings. She alleged ineffective assistance of her former counsel for failure to apply for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

Flores-Panameno explained that she had retained her former counsel to assist her in applying for asylum. Her former counsel told her he would prepare the application. But on the day of the February 11, 2016, hearing, he told her it was too late to apply. He stated the IJ would let them know at the following hearing whether the IJ would accept the late asylum application. Yet at the March 15, 2016, hearing, the attorney asked Flores-Panameno to sign a document but did not explain what the document was. The document was a Request for Pre-Conclusion Voluntary Departure and Declaration Regarding Non-Coercion. Flores-Panameno "thought [the document] was some sort of certification" and did not find out what she had signed until the IJ called the case. When she expressed her confusion to the IJ, he ordered a recess to give her time to speak with her attorney. Her attorney did not speak Spanish, and she did not speak English, so conversing was difficult. The attorney told her the IJ would not accept her asylum application, so voluntary departure was her only option to avoid immediate removal. She asserts she accepted voluntary departure thinking it was her only choice; had the options been explained to her before the hearing, she says, she would not have acquiesced.

Indeed, she argues, she is "unable to return" to El Salvador. In her affidavit attached to the motion to reopen, she stated she left because she and her children were being threatened by two rival gangs, MS-13 and the 18th Gang. Her children refused to join the gangs, and the gang members threatened to kill them. Gang members also showed up at Flores-Panameno’s home and demanded money; when she said she could not pay, they threatened to kill her children. She filed a police report, and gang members called her to inform her that the police were working with them and had told them about the report. That incident pushed her to leave El Salvador for the United States, where she says she always intended to apply for asylum.

On April 11, 2017, the IJ denied Flores-Panameno’s motion to reopen. He explained that at the March 15, 2016, hearing, he had given Flores-Panameno’s former counsel two opportunities to explain to Flores-Panameno what she was signing. The IJ also stated that he explained to her "on the record the consequences of accepting voluntary departure through [a] Spanish translator" and was satisfied that she understood.

Thus, even though the IJ concluded Flores-Panameno had demonstrated ineffective assistance of counsel, he found her contention that she was misled to be "wholly without merit." He found that she "did not accept voluntary departure based on [her] former counsel’s advice, but based on the procedure that the [IJ] followed to ensure that [she] knowingly and voluntarily accept voluntary departure." Citing to a record not before us, the IJ said he explained several times that voluntary departure was truly voluntary and that Flores-Panameno did not have to accept it; that he asked twice if the contents of the document she signed were explained in a language she understood; and that he asked if she was forced or coerced into accepting voluntary departure. The IJ also insisted that he explained, through a translator, the consequences of accepting voluntary departure—including the finality and non-appealability of the decision. Thus, the IJ concluded that, because Flores-Panameno knowingly and voluntarily requested voluntary departure, her former counsel’s conduct "was not so prejudicial that there is a reasonable probability that, but for his conduct, the outcome of [her] proceedings would have been different."

Flores-Panameno appealed to the BIA. She acknowledged that the IJ followed proper procedure to grant voluntary departure. Nevertheless, she contended that she agreed to voluntary departure not because of what the IJ said but because she thought she had to do what her attorney told her to do and because she was not prepared to make a decision at the hearing.

The BIA dismissed the appeal. It agreed with the IJ that Flores-Panameno failed to establish actual prejudice. It found the IJ took "substantial steps to ensure" her acceptance was knowing and voluntary and that she had not been misled by counsel. Flores-Panameno "concede[d] ... that these advisals were given and the [IJ] used the proper procedure for granting pre-conclusion voluntary departure."²

This timely petition for review followed.

II.

A.

"We review the BIA’s denial of a motion to reopen for abuse of discretion. Our review is limited to determining whether there has been an exercise of administrative discretion and whether the matter of exercise has been arbitrary or capricious." Ali v. U.S. Att’y Gen. , 443 F.3d 804, 808 (11th Cir. 2006) (citation and quotation marks omitted). The BIA may deny a motion to reopen based on one of at least three independent grounds: "1) failure to establish a prima facie case; 2) failure to introduce evidence that was material and previously unavailable; and 3) a determination that despite the alien’s statutory eligibility for relief, he or she is not entitled to a favorable exercise of discretion." Al Najjar v. Ashcroft , 257 F.3d 1262, 1302 (11th Cir. 2001).

We review only the BIA’s decision, "except to the extent that it expressly adopts the IJ’s opinion." Id. at 1284. "Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s decision as well." Id .

B.

8 U.S.C. § 1362 provides that aliens have the right to retain private counsel in their removal proceedings. Aliens who are represented in civil removal proceedings have the right to effective assistance of counsel. Gbaya v. U.S. Att’y Gen. , 342 F.3d 1219, 1222 (11th Cir. 2003) (quoting Mejia Rodriguez v. Reno , 178 F.3d 1139, 1146 (11th Cir. 1999) ).

We have held "that, in addition to substantial, if not exact, compliance with" certain procedural requirements set forth by the BIA,³ "a petitioner claiming ineffective assistance of counsel in a motion for reconsideration must also show prejudice" as well as counsel’s deficient performance. Dakane v. U.S. Att’y Gen. , 399 F.3d 1269, 1274 (11th Cir. 2005). "Prejudice exists when the performance of counsel is so inadequate that there is a reasonable...