Flores v. Barr

• Decision Date: 18 July 2019
• Docket Number: No. 15-73461,15-73461
• Parties: Daniel FLORES, aka Richard Daniel Flores, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

930 F.3d 1082

Daniel FLORES, aka Richard Daniel Flores, Petitioner,
v.
William P. BARR, Attorney General, Respondent.

No. 15-73461

United States Court of Appeals, Ninth Circuit.

Submitted June 13, 2019^* Pasadena, California
Filed July 18, 2019

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David B. Gardner, Law Offices of David B. Gardner, Los Angeles, California, and Louis A. Gordon, Law Offices of Louis A. Gordon, Los Angeles, California, for Petitioner.

Matthew B. George, Trial Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney; Douglas E. Ginbsurg, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX8-941

Before: Kim McLane Wardlaw, Jay S. Bybee, and John B. Owens, Circuit Judges.

PER CURIAM:

Daniel Flores petitions for review of the Board of Immigration Appeals’ (BIA) order denying his untimely motion to reopen

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his removal proceedings. Flores’s motion rested on his assertion that he received ineffective assistance of counsel during his removal proceedings. Although the BIA agreed with Flores that his prior counsel performed deficiently, the BIA denied his motion to reopen after concluding that Flores failed to show prejudice. With respect to some of Flores’s claims, however, the BIA applied "standards more stringent than were proper" for determining prejudice. Maravilla Maravilla v. Ashcroft , 381 F.3d 855, 859 (9th Cir. 2004) (per curiam). We accordingly grant the petition in part, deny the petition in part, and remand for further proceedings.

I

A

Petitioner Daniel Flores is a native and citizen of Mexico. He came to the United States as a lawful permanent resident in 1962, when he was seven years old, and has continuously lived in the United States ever since. All of his family—his elderly mother, his half-brother, two daughters, and several grandchildren—live in the United States. He has no family in Mexico.

Starting in the 1970s, Flores began serving as a confidential informant for law enforcement, participating in undercover controlled drug buys and testifying against members of various gangs. Also around that time, Flores began to amass a lengthy criminal record that culminated in his pleading guilty in 1990 to two felony counts of committing lewd and lascivious acts on a child under the age of 14 in violation of California Penal Code § 288(a). Flores’s conviction carried with it a six-year prison sentence, of which he served three. He was released from prison on parole in 1994, discharged from parole in 1997, and has no further criminal record.

After his release from prison, Flores worked in the corporate security industry until 2002, when he stopped working for health reasons. He resumed his role as a confidential informant for law enforcement in 2008 but was forced to discontinue his assistance in 2011 following foot surgery. Today, Flores spends his time taking care of his mother, who suffers from several serious medical conditions, including epilepsy, Parkinson’s disease, and dementia.

B

DHS initiated removal proceedings against Flores, alleging that his conviction under § 288(a) qualified as an "aggravated felony" conviction for a "crime of violence" under 8 U.S.C. § 1101(a)(43)(F) and "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), independent bases rendering Flores removable under 8 U.S.C. § 1227(a)(2)(A)(iii). After attending a couple of immigration hearings unrepresented, Flores hired an attorney to represent him, admitted he was a Mexican citizen, and denied the charges of removability. An immigration judge (IJ) concluded that Flores had in fact been convicted under § 288(a) and that this conviction constituted both a "crime of violence" and "sexual abuse of a minor," at which point Flores sought only one form of relief from removal—discretionary relief under former § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (repealed 1996).¹ For the agency to exercise its discretion in favor of granting § 212(c) relief, the applicant must show that the "the social and humane considerations presented in the applicant’s favor" outweigh "the adverse

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factors that evidence the applicant’s undesirability as a permanent resident." Vargas-Hernandez v. Gonzales , 497 F.3d 919, 923 (9th Cir. 2007) (citation omitted); see Matter of Marin , 16 I. & N. Dec. 581, 584–85 (BIA 1978).

An IJ heard testimony from Flores, his mother, his half-brother, and his two daughters. All of Flores’s relatives supported his request to remain in the United States, stressing his good character and the hardships his removal would produce. Nevertheless, the IJ denied Flores’s application for § 212(c) relief in August 2013. Although the IJ identified several positive factors bearing on Flores’s application—including, among others, his many years of residency in the United States; his close and supportive relationship with his elderly mother; his work for law enforcement; and the absence of any criminal conduct since his release from prison in 1994—the IJ concluded that these factors did not outweigh the "serious nature" of his § 288(a) conviction. The IJ also noted Flores’s lack of recent employment and his failure to "voluntarily" attend counseling after his release from prison (even though he had attended counseling while in prison).

Flores appealed the IJ’s decision to the BIA. Reviewing the IJ’s decision de novo, the BIA concluded that the IJ "properly balanced the adverse factors of record evidencing the respondent’s undesirability as a permanent resident with the social and humane considerations presented in his behalf and correctly determined that relief is not in the best interest of this country."

Flores then filed a petition for review in this court. The government moved to dismiss, arguing that we lacked jurisdiction to review the discretionary denial of § 212(c) relief. See, e.g. , Palma-Rojas v. INS , 244 F.3d 1191, 1192 (9th Cir. 2001) (per curiam). Flores, represented by the same attorney, never responded. We granted the motion to dismiss for lack of jurisdiction in June 2015 and denied rehearing shortly thereafter.

C

In August 2015, Flores, represented by new counsel, filed a motion with the BIA to reopen his removal proceedings, alleging that his prior counsel provided ineffective assistance. Ordinarily, a motion to reopen must be filed within 90 days of the final removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i) ; 8 C.F.R. § 1003.2(c)(2), a deadline that had long passed for Flores. But the 90-day deadline is subject to "equitable tolling due to ineffective assistance of counsel." Salazar-Gonzalez v. Lynch , 798 F.3d 917, 920 (9th Cir. 2015). For equitable tolling to apply, the petitioner must show "(a) that he was prevented from timely filing his motion due to prior counsel’s ineffectiveness; (b) that he demonstrated due diligence in discovering counsel’s fraud or error; and (c) that he complied with the procedural requirements of Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988)." Id. (quoting Singh v. Holder , 658 F.3d 879, 884 (9th Cir. 2011) ). In addition to these procedural requirements, the petitioner "must show that his ‘counsel’s performance was deficient, and that he suffered prejudice’ as a result." Id. (internal alteration omitted) (quoting Singh , 658 F.3d at 885 ).

Flores contended that his prior counsel provided ineffective assistance by failing to, among other things, challenge the grounds for his removability, apply for withholding of removal and protection under the Convention Against Torture (CAT), develop sufficient hardship evidence for his § 212(c) application, prepare his family members for the § 212(c) hearing, and respond to the government’s motion to dismiss in this court. Flores attached a sworn declaration explaining his fear of being tortured in Mexico as a result

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of his work helping to prosecute gang members. He also submitted additional evidence of the hardship he and his mother would face if he were removed, letters from law enforcement confirming Flores’s work as a confidential informant, and evidence of country conditions in Mexico, including a declaration by a country conditions expert.

The BIA denied Flores’s motion to reopen. Although the BIA concluded that Flores satisfied the requirements of Lozada and demonstrated that his prior counsel "did not perform with sufficient competence," the BIA found that Flores failed to show "prejudice" with respect to any of the forms of relief he would pursue on reopening—asylum, withholding of removal, and CAT protection. First, the BIA concluded that Flores’s conviction under California Penal Code § 288(a) —which, it observed, qualifies as an "aggravated felony" conviction for "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A) —rendered him statutorily ineligible for asylum, and that the six-year sentence accompanying that conviction rendered him ineligible for withholding of removal under the INA and withholding of removal under the CAT. Second, the BIA concluded that although...