Iturribarria v. I.N.S.

• Decision Date: 04 March 2003
• Docket Number: No. 02-70003.,02-70003.
• Citation: 321 F.3d 889
• Parties: Miguel Angel ITURRIBARRIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 889

321 F.3d 889

Miguel Angel ITURRIBARRIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-70003.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2002.

Filed March 4, 2003.

COPYRIGHT MATERIAL OMITTED

Edgardo Quintanilla and Anna Luisa Padilla, Sherman Oaks, CA, for the petitioner-appellant.

Anthony C. Payne and Cindy S. Ferrier, Attorneys, Office of Immigration Litigation, Civil Division. United States Department of Justice, Washington, D.C., for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before CANBY, GOULD and BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Miguel Angel Iturribarria petitions this court for review of the Board of Immigration Appeals' (BIA) denial as untimely of his motion to reopen deportation proceedings, so as to permit the filing of an application for suspension of deportation under former Immigration and Nationality Act (INA) § 244. He alleges that the BIA violated due process by deeming his motion to reopen a motion to reconsider, in violation of applicable Immigration and Naturalization Service (INS) regulations. Mr. Iturribarria further alleges that his former counsel was ineffective, and that he is therefore entitled to equitable tolling sufficient to convert his untimely motion to reopen into a timely one.

We agree with Mr. Iturribarria that the BIA misapplied its own regulations when it classified his motion alleging ineffective assistance of counsel as a motion to reconsider rather than a motion to reopen. Where the facts surrounding allegedly ineffective representation by counsel were unavailable to the petitioner at an earlier stage of the administrative process, motions before the BIA based on claims of ineffective assistance of counsel are properly deemed motions to reopen. By misapplying its regulations to incorrectly categorize Mr. Iturribarria's motion, the BIA abused its discretion.

We also agree that, if his first attorney acted fraudulently as Mr. Iturribarria asserts, then he is entitled to equitable tolling to convert his untimely motion to reopen into a timely one. We further conclude that, if Mr. Iturribarria were to establish at a hearing that his assertions concerning his attorney's conduct are true, then his former counsel's performance was so ineffective that it denied him due process in previous proceedings. We find that any such alleged ineffective performance did not, however, prejudice Mr. Iturribarria's claim for suspension of deportation, and therefore we deny his petition for review.

BACKGROUND

Mr. Iturribarria is a Mexican citizen who currently lives in Mission Hills, California with his wife and their three United States citizen children. On May 1, 1988, Mr. Iturribarria entered the United States without inspection at the San Ysidro, California port of entry. He moved to the Los Angeles area and found work as a restaurant cook. On January 24, 1997, the INS served Mr. Iturribarria with an Order to Show Cause (OSC), stating that he was subject to deportation.

At the time he received the OSC, Mr. Iturribarria was employed as a cook at Tacos Tacos, a Los Angeles restaurant. There he met Phyllis Colman, an attorney whose office was located nearby; Ms. Colman came to the restaurant to eat about once a week. After receiving the OSC, Mr. Iturribarria retained Ms. Colman to represent him in deportation proceedings before the Immigration Court.

At the deportation hearing on April 23, 1997, Ms. Colman requested a continuance to gather information in support of Mr. Iturribarria's asylum and withholding of deportation claims and to prepare an application for suspension of deportation. The Immigration Judge (IJ) granted a continuance until March 12, 1998, taking pains to inform both Ms. Colman and Mr. Iturribarria that the application for suspension of deportation must be filed by December 12, 1997. The IJ further warned that if the application for suspension of deportation were not timely filed, it would be deemed abandoned.

Neither Ms. Colman nor Mr. Iturribarria filed an application for suspension of deportation on or before December 12, 1997. In the continued hearing on March 12, 1998, Ms. Colman withdrew Mr. Iturribarria's application for asylum and withholding of deportation and submitted an application for cancellation of removal. When the IJ questioned Ms. Colman about her failure to timely file an application for suspension of deportation, Ms. Colman stated: "[M]y client had difficulty in securing documents in support of the application... [W]e didn't have the sufficient information in order to complete the application on time." When the IJ questioned Mr. Iturribarria about the lapse, he responded: "I did not have the papers on time. I had to request them from Mexico."

The IJ deemed the application for suspension of deportation abandoned, noting that the reasonable deadline for filing for suspension of deportation had not been met; that the application that had been turned in by Ms. Colman that day was one for cancellation of removal, not suspension of deportation; and that Mr. Iturribarria's fingerprints had never been submitted so that the INS could perform a background check. The IJ also declined to grant Mr. Iturribarria voluntary departure, citing two incidents involving police contact as preclusive of the requisite finding of good moral character. Mr. Iturribarria maintained, however, that he had never been arrested, jailed, fined, or convicted of criminal activity.

Still represented by Ms. Colman, Mr. Iturribarria timely appealed to the BIA. Ms. Colman's brief asked that the failure to file a timely application for suspension of deportation be forgiven, assigning sole responsibility to Mr. Iturribarria: "Unfortunately, family and employment duties were such that he simply forgot to abide by the deadline of the IJ and assist his attorney in preparing the requisite application on a timely basis." The brief was accompanied by an affidavit by Mr. Iturribarria, which stated, in pertinent part:

On or about August 1997 I changed my home telephone number. In addition, my employment changed in November 1997 and the business closed. Regarding both of these changes, I forgot to advise my attorney, Phyllis R. Colman, of my new home and employment telephone numbers.... My attorney advised me to secure documents in support of the application for suspension of deportation on April 23, 1997, and at several later dates and to come to her office on November 12, 1997. I failed to appear for the appointment with my attorney simply because I have worked six days a week, full-time, and my wife and I have three young children, now aged six, four and one year old. Unfortunately, my work and family responsibilities were such that I simply forgot to contact my attorney and timely prepare the required application, with the supporting documents.

The affidavit contained no indication that it had been translated to enable Mr. Iturribarria, who is not fluent in English, to read it in Spanish, his native language, before signing it.

The BIA rejected Mr. Iturribarria's appeal in an October 5, 2000 decision:

To the extent that his attention to the time schedule set by the Immigration Judge was undermined by the normal responsibilities of his daily life, he has not established reasonable cause for failing to abide by the schedule set by the Immigration Judge. Moreover, he was represented by counsel during the course of his proceedings before the Immigration Judge but neglected to remain in contact with his counsel. In sum, the excuse provided by the respondent for not properly pursuing his application for suspension of deportation is not good enough.

A majority of the BIA panel did reverse the IJ's refusal to grant voluntary departure, finding that "a preponderance of the evidence does not establish that the respondent is statutorily precluded from the privilege of voluntary departure. Moreover, there is no proof that the respondent was convicted of a serious crime which would weigh against a favorable exercise of discretion."

On October 11, 2000, Ms. Colman sent a letter to Mr. Iturribarria stating that he had lost the appeal and had to leave the country by the date designated by the BIA. The letter also told Mr. Iturribarria that he would probably not prevail should he choose to appeal the decision to the Ninth Circuit.

At that point, Mr. Iturribarria contacted his present counsel for advice. Present counsel requested a copy of Mr. Iturribarria's file from Ms. Colman and received it on October 19, 2000. On January 11, 2001, present counsel filed a motion to reopen before the BIA, alleging that ineffective assistance by Ms. Colman had denied Mr. Iturribarria due process in his deportation proceedings.

The motion argued that because "new evidence is available that was not available and could not have been discovered or presented" before the due dates of the application for suspension of deportation and the BIA appeal, and because "Respondent has established a prima facie eligibility for the relief of Suspension of Deportation," Mr. Iturribarria's case should be reopened to enable him to apply for suspension of deportation. The motion further stated that, under Lopez v. INS, 184 F.3d 1097 (9th Cir.1999), the time limit for filing a motion to reopen should be equitably tolled. Ms. Colman had misled Mr. Iturribarria, the motion contended, and Mr. Iturribarria did not become aware of the deception until after his present counsel reviewed his file with him on November 1, 2000.

In support of this motion, Mr. Iturribarria attached two affidavits. One stated that because he had known Ms. Colman for a few years before she began representing him, he trusted her to do a good job on his behalf even after the deportation hearing in which he learned she had not filed the application for suspension of deportation. The other recited that Ms. Colman...