Jie Lin v. Ashcroft

• Decision Date: 26 January 2004
• Docket Number: No. 02-70662.,02-70662.
• Parties: JIE LIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

377 F.3d 1014

JIE LIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-70662.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 2003.

Filed January 26, 2004.

Amended August 4, 2004.

COPYRIGHT MATERIAL OMITTED

Amos E. Hartston, Melissa K. Pifko and Adrian F. Davis, Latham & Watkins, LLP, Los Angeles, CA, for the petitioner.

Daniel E. Goldman and Christine A. Bither, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A77-340-590.

Before: B. FLETCHER, KOZINSKI, and TROTT, Circuit Judges.

ORDER

The panel, with the following amendments, has voted to deny the petition for panel rehearing. The opinion published at 356 F.3d 1027 (9th Cir.2004) is amended as follows:

1. Op. at 1035, lines 5-12 of Section III.A.2: Delete

We have held that such a due process challenge requires two showings. First, the petitioner must allege facts to allow the court "to infer that competent counsel would have acted otherwise." Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir.1986). Second, "[d]ue process challenges to deportation proceedings require a showing of prejudice to succeed." Rodriguez-Lariz v. INS, 282 F.3d at 1226.

and replace with

We have also held that "[d]ue process challenges to deportation proceedings require a showing of prejudice to succeed." Rodriguez-Lariz, 282 F.3d at 1226.

2. Op. at 1035 n. 6: Delete footnote in its entirety.

3. Op. at 1035, line 2 of Section III.B: Delete "fell outside the range of professional competence." and replace with "constituted ineffective assistance of counsel.".

4. Op. at 1036, last two lines of Section III.B.1: Delete "we do not base our finding of incompetence entirely on this claim." and replace with "we do not base our finding of ineffectiveness entirely on this claim.".

5. Op. at 1036, second paragraph of section III.B.2: Delete

Counsel's unreasonable failure to investigate and present the factual and legal basis of Lin's asylum claim would itself place her actions outside of the range of competent assistance of counsel under Strickland. Before exercising reasonable professional judgment over what facts and legal theories to advance to the IJ, she had to investigate Lin's case sufficiently to learn what those facts were. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2538-39, 156 L.Ed.2d 471 (2003) (holding that "alleged choice" not to present a conceivable defense, when following an unreasonable investigation that failed to discover basis for that defense, is itself unreasonable) (citing Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).

and replace with

Counsel's unreasonable failure to investigate and present the factual and legal basis of Lin's asylum claim would itself amount to ineffective assistance of counsel. Cf. Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.2000) (holding that attorney who was unprepared to argue and unknowledgeable about the facts of an asylum case could not have provided effective assistance of counsel), amended on other grounds by 213 F.3d 1221 (9th Cir.2000).

and combine with subsequent paragraph.

6. Op. at 1037, III.B.4 heading: Change "Failure of advocacy at trial" to "Failure of advocacy at the hearing"

7. Op. at 1038, lines 5-9 of Section III.B.6: Delete

We address the question of prejudice below; here we focus solely on the performance prong posed in Mohsseni Behbahani, i.e., whether the facts allow the inference "that competent counsel would have acted otherwise." 796 F.2d at 251.

and replace with

We address the question of prejudice below; here we focus solely on whether counsel's performance rendered "the proceeding... so fundamentally unfair that [Lin] was prevented from reasonably presenting his case." Lopez, 775 F.2d at 1017.

8. Op. at 1038, third paragraph of section III.B.6: Delete We do not require that Lin's representation be brilliant, but it must be "within the wide range of reasonable professional assistance," such that "under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citation and internal quotation marks omitted).

and replace with

We do not require that Lin's representation be brilliant, but it cannot serve to make Lin's immigration hearing "so fundamentally unfair that [he] was prevented from reasonably presenting his case." Lopez, 775 F.2d at 1017.

9. Op. at 1038, fourth paragraph of section III.B.6: Delete

the record compels the conclusion that competent counsel would not have been as woefully unprepared to present Lin's case as counsel was on the day that she did so before the IJ. We conclude that the quality of her representation of Lin fell outside the wide range of professionally competent assistance.

and replace with

the record compels the conclusion that counsel providing effective assistance would not have been as woefully unprepared to present Lin's case as Lin's counsel was on the day that she did so before the IJ. We conclude that the quality of her representation deprived Lin of his Fifth Amendment due process right to a full and fair hearing.

10. Op. at 1038, line 6 of Section III.C: Delete "To prove he was prejudiced by counsel's incompetence" and replace with "To prove he was prejudiced by counsel's alleged ineffectiveness".

11. Op. at 1040, last line of third paragraph of section III.C.1.a: Delete "incompetent assistance" and replace with "ineffective assistance."

12. Op. at 1043, lines 4-7 of Section III.C.3: Delete

Because we hold that Lin, a minor, had not waived the right to be represented by competent counsel in the hearing before the IJ, and that counsel's performance was incompetent, it follows that Lin cannot be held to have waived the right to make arguments based on these assertions unless competent counsel has done so.

and replace with:

Because we hold that Lin, a minor, had not waived the right to be represented by effective counsel in the hearing before the IJ, and that counsel's performance was ineffective, it follows that Lin cannot be held to have waived the right to make arguments based on these assertions unless effective counsel has done so.

13. Op. at 1044, last three lines of page: Delete citation to Strickland: Cf. Strickland, 466 U.S. at 692, 104 S.Ct. 2052 ("Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.").

14. Op. at 1045, lines 10-14 of first full paragraph: Delete

Counsel's incompetence at the hearing denied Lin a full and fair opportunity to present his case before the IJ, and thus violated his Fifth Amendment right to due process. The BIA's conclusion that counsel's incompetent performance was not prejudicial is error

and replace with

Counsel's ineffective assistance at the hearing denied Lin a full and fair opportunity to present his case before the IJ, and thus violated his Fifth Amendment right to due process. The BIA's conclusion that counsel's ineffective assistance was not prejudicial is error

The full court was advised of the petition for rehearing en banc and the proposed amendments included herein. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R.App. P. 35.

The opinion as amended is filed simultaneously with this order. No further petitions for rehearing or rehearing en banc will be entertained.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

BETTY B. FLETCHER, Circuit Judge:

Jie Lin ("Lin") petitions for review of the Board of Immigration Appeals ("BIA") denial of his motion to reopen his application for asylum, withholding of removal, and relief under the Convention Against Torture.¹ He asserts that his claims were prejudiced due to ineffective assistance of counsel. Lin's mother bore a second child in violation of China's mandatory limits on procreation, which Lin alleges led to persecution of her and her family, including him. Lin argues that his prior counsel presented no legal argument in Lin's hearing that he warranted refugee status — either on a basis derivative of the persecution of his parents or based on his own previous persecution, which he claims will recur if he is returned to China — and that Lin's counsel failed to discover critical facts, in part because she expected to be able to substitute other counsel to represent Lin. We grant the petition and remand for further proceedings before the BIA.

I. JURISDICTION

We have jurisdiction to review the BIA's Order dismissing Lin's Motion to Reopen under 8 U.S.C. § 1252(b)(2). The BIA acknowledged in its Order of Dismissal that Lin has met the three procedural requirements for pursuing an ineffective assistance of counsel claim listed in Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), which were adopted by this court in Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000). Specifically, Lin furnished the BIA with an affidavit describing in detail his agreement for representation by his prior counsel, informed her of his allegations against her and afforded her the opportunity to respond to them; and reported that he had filed a complaint against prior counsel with the appropriate state bar.

II. FACTS AND PROCEDURE

On January 27, 2001, Lin arrived at Los Angeles International Airport on a flight from China. He had been advised to try to appear to be part of another Chinese family traveling on the same flight. He was found alone in an airport restroom and taken for interrogation. Lin was 14 years old, could not speak English, and had no knowledge of the American legal system. He was immediately placed in detention by the Immigration and Naturalization Service ("INS"). A removal hearing was scheduled for ...