Granados-Oseguera v. Gonzales

• Decision Date: 25 September 2006
• Docket Number: No. 03-73030.,03-73030.
• Citation: 464 F.3d 993
• Parties: Mariano GRANADOS-OSEGUERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.3d 993

Mariano GRANADOS-OSEGUERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-73030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 17, 2006.

Filed September 25, 2006.

Mary Beth Canty, Laura Boyle, Josh Chetwynd, Law Students, Tucson, AZ, argued the case for the petitioner; Willie M. Jordan-Curtis, Ph.D., J.D., Esq, Assistant Dean for Student Affairs and Associate Clinical Professor of Law, The University of Arizona, Rogers College of Law, Pro Bono Appellate Project, Tucson, AZ, was on the briefs for the petitioner.

Arthur L. Rabin, Department of Justice, Washington, D.C., argued the case for the respondent; Peter D. Keisler, Assistant Attorney General, Michelle Gorden Latour, Assistant Director, Linda S. Wendtland, Assistant Director, and Cindy S. Ferrier, Senior Litigation Counsel, Washington, D.C., were on the briefs for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A91-692-353.

Before: B. FLETCHER, TASHIMA, and CALLAHAN, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

I.

Mariano Granados-Oseguera petitions for review of the Board of Immigration Appeals' (BIA's) affirmance of an Immigration Judge's (IJ's) denial of cancellation of removal as well as the BIA's denial of his motion to reopen proceedings to allow him to apply for adjustment of status.

We deny Granados-Oseguera's petition as to his equal protection claim based on a claim of disparate treatment of different classes of aliens; it does not violate Petitioner's equal protection rights to treat aliens permitted voluntarily to depart differently from aliens not eligible for voluntary departure with respect to the amount of time in which they may file a motion to reopen proceedings.¹ de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir.2004). We grant Granados-Oseguera's petition as to the BIA's denial of his motion to reopen proceedings and as to his ineffective assistance of counsel (IAC) claim—the two are related. In the limited situation where an alien is represented by the same allegedly incompetent counsel throughout agency proceedings including through the filing of his motion to reopen proceedings before the BIA and therefore cannot administratively exhaust² a claim for ineffective assistance of counsel, we have jurisdiction to review the denial of the motion to reopen. We will review to determine whether the denial of effective counsel rises to the level of a due process violation and was prejudicial. Here, Petitioner's counsel failed to file a petition for review or a motion to reopen proceedings within the 30-day voluntary departure period; counsel knew or should have known that Petitioner would be barred from relief if he failed timely to file the petition or motion; these failings occurred despite the fact that counsel received several warnings and notices from the IJ as to the consequences of Petitioner failing to depart within that 30-day period; further, these failures occurred despite clear case law holding that motions to reopen filed after the voluntary departure period had expired would be denied as untimely and tardy petitions for review would be dismissed by this court. Ray v. Gonzales, 439 F.3d 582, 586-89(9th Cir. 2006); Shaar v. INS, 141 F.3d 953, 956 (9th Cir.1998).

Accordingly, we remand for the BIA to reconsider the motion to reopen in light of Petitioner's ineffective assistance of counsel allegations, which it has not yet had an opportunity to consider.

II.

Mariano Granados-Oseguera is a citizen of Mexico. He entered the United States without inspection as a sixteen-year old around June 6, 1984. He is married and has two United States citizen children, ages seventeen and six. On August 16, 1993, Granados-Oseguera filed an application for asylum. That application was referred to the Immigration Court on September 24, 1997, following an interview with an INS officer. The INS issued a notice to appear the following day, charging that Granados-Oseguera was subject to removal under section 212(a)(6)(A)(i) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), for having entered the United States without having been admitted or paroled. Petitioner appeared with counsel before an Immigration Judge on April 29, 1998, conceded removability, and applied for cancellation of removal. He appeared again before the IJ on August 10, 1999. At this hearing, his counsel sought an extension because she had lost Petitioner's case file; apparently, counsel's secretary had left, taking three case files with her. The IJ questioned Granados-Oseguera about his interactions with his counsel leading up to his hearing, and it became clear that Granados-Oseguera had spoken only with his counsel's secretary, never with counsel. The IJ continued Granados-Oseguera's hearing until January 23, 2001, permitting counsel to file an application for cancellation of removal.

Following the January 23, 2001 hearing, the IJ found that Granados-Oseguera satisfied two of the requirements for cancellation of removal: 10-years continuous physical presence in the United States and good moral character. However, the IJ found that Granados-Oseguera had not shown that his qualifying relative, his U.S. citizen daughter, would face exceptional and extremely unusual hardship if he were removed from the United States. On that basis, the IJ denied Granados-Oseguera's application for cancellation of removal, granting him thirty days in which voluntarily to depart. The IJ notified Petitioner's counsel that if Petitioner failed to depart during his voluntary departure period, he would forfeit any opportunity to return to the United States for ten years.

On February 22, 2001, Granados-Oseguera filed a timely notice of appeal of the IJ's decision to the BIA. A few months later, on April 27, 2001, Granados-Oseguera applied for a labor certification from the Department of Labor. The BIA summarily affirmed the IJ's decision on September 6, 2002 and permitted Granados-Oseguera voluntary departure, setting his departure date for October 6, 2002. The BIA noted in its order that failure to depart during the 30-day period would undermine any chance for re-entry for ten years.

Granados-Oseguera's counsel failed to petition this court for review of the BIA's summary affirmance, making the IJ's decision a final order of removal and finalizing Petitioner's departure date for October 6, 2002. Caring for his sick daughter and father, Granados-Oseguera did not depart within his voluntary departure period. His counsel never sought an extension on his behalf to argue exceptional circumstances. Instead, Granados-Oseguera's counsel filed a motion to reopen his removal proceedings a couple of months later, on December 6, 2002³ so that Granados-Oseguera could seek adjustment of status under 8 U.S.C. § 1255(i) based on his application for labor certification. Granados-Oseguera's counsel supplemented the December 6, 2002 motion with proof that the Department of Labor had approved Petitioner's application for labor certification on December 12, 2002 and that Petitioner had filed a Form I-140, Petition for Alien Worker, with the Immigration and Naturalization Service (INS). In response to the government's argument that Granados-Oseguera was barred from filing a motion to reopen by his failure to depart voluntarily within his prescribed period, Granados-Oseguera's counsel filed a reply brief explaining his failure to depart based on his father's and daughter's illnesses, claiming exceptional circumstances. However, counsel had failed to seek an extension of the voluntary departure period on this basis.

The BIA denied Petitioner's motion to reopen proceedings on July 23, 2003, in part because the IJ and BIA had given Granados-Oseguera through his counsel "notice of the consequences of failure to depart." Denial of Motion to Reopen (July 23, 2003).

On August 22, 2003, Granados-Oseguera filed a pro se, timely petition for review from the BIA's denial of his motion to reopen. Through this court's Pro Bono Representation Project, Granados-Oseguera was appointed counsel. We review the BIA's decision for an abuse of discretion. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004).

III.

A. Petitioner's Equal Protection Claim

Granados-Oseguera argues that his equal protection rights have been violated because aliens who are not granted voluntary departure may employ the full 90-day period to file a motion to reopen, while aliens granted voluntary departure have only 30 to 60 days to file their motions to reopen.⁴ He contends that this disparate treatment constitutes an equal protection violation. We disagree.

Although aliens are entitled to the benefits of the Equal Protection Clause, Perez-Oropeza v. INS, 56 F.3d 43, 44(9th Cir. 1995), Congress has broad authority over the "admission and expulsion of aliens." Shaar v. INS, 141 F.3d 953, 958(9th Cir. 1998) (citing Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977)). Interpreting this broad authority, we have held that a statute limiting relief available to certain classes of aliens must be "wholly irrational" to violate equal protection standards. de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir.2004) (quoting Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-64 (9th Cir.2002)); Perez-Oropeza, 56 F.3d at 45. Petitioner bears the "burden to negate `every conceivable basis which might support [a legislative classification] . . . whether or not the basis has a foundation in the record.'" Id. (quoting Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)) (alteration in original).

Granados-Oseguera cannot meet this burden since we have upheld the very distinction he challenges here. In de Martinez, we held that treating those aliens permitted voluntary departure differently, with respect to the window for filing a motion to reopen, from those not granted...