Lara-Torres v. Ashcroft, 02-72329.

• Decision Date: 08 September 2004
• Docket Number: No. 02-72329.,No. 03-70931.,No. 03-70932.,02-72329.,03-70931.,03-70932.
• Citation: 383 F.3d 968
• Parties: Dagoberto LARA-TORRES; Erika Lara-Perez, Petitioners, v. John ASHCROFT, Attorney General, Respondent. Dagoberto Lara-Torres; Erika Lara-Perez, Petitioners, v. John Ashcroft, Attorney General, Respondent. Dagoberto Lara-Torres; Erika Lara-Perez, Petitioners, v. John Ashcroft, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 968

Dagoberto LARA-TORRES; Erika Lara-Perez, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

Dagoberto Lara-Torres; Erika Lara-Perez, Petitioners, v. John Ashcroft, Attorney General, Respondent.

Dagoberto Lara-Torres; Erika Lara-Perez, Petitioners, v. John Ashcroft, Attorney General, Respondent.

No. 02-72329.

No. 03-70931.

No. 03-70932.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2004.

Filed September 8, 2004.

Marc Van Der Hout, Van Der Hout, Brigagliano & Nightingale, San Francisco, CA, for the petitioners.

Russell J.E. Verby, U.S. Dept. of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A75-306-260, A75-306-476.

Before WALLACE, McKEOWN, Circuit Judges, and MOSKOWITZ, District Judge.^*

Opinion by Judge WALLACE; Concurrence by Judge McKEOWN

WALLACE, Senior Circuit Judge.

Dagoberto Lara-Torres and Erika Lara-Perez (together Petitioners) timely petitioned for review of three Board of Immigration Appeals (Board) decisions which have since been consolidated before us. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petitions.

I.

Although the accuracy of the following account might be disputed, for this proceeding we portray the background facts as Petitioners do. Lara-Torres entered the United States from Mexico on June 2, 1988, without being admitted or paroled. Lara-Perez arrived on September 27 of the following year, also crossing into the United States without being admitted. The two, both natives and citizens of Mexico, were married in the United States and have a daughter with United States citizenship. They apparently concealed their illegal immigrant status from United States immigration officials until the following events unfolded.

In January of 1997, Lara-Torres found his way to the law office of Walter Pineda in search of immigration advice. When he inquired about his options for securing permanent legal residence in the United States, Pineda informed him that an asylum application was one possibility. If the Immigration and Naturalization Service (INS) were to deny Lara-Torres's asylum application, an Immigration Judge (IJ) would consider the application at a subsequent hearing to determine if Lara-Torres must depart the United States. An additional category of relief would be available to Lara-Torres at that time, the exact form of which depended on whether he was placed in immigration proceedings before April 1, 1997, or after. April 1 was significant, Pineda explained, because on that day, recent congressional alterations to United States immigration provisions would become law. Accordingly, if the INS commenced a "deportation" action prior to April 1 by filing an "Order to Show Cause," Lara-Torres's accrual of seven years "continuous physical presence" in the United States would make him eligible for "suspension of deportation." On the other hand, if the INS sought to have him "removed" after April 1, 1997, Lara-Torres could seek "cancellation of removal," but only upon accumulating ten years physical presence. According to Lara-Torres, Pineda indicated that it did not matter whether Lara-Torres received a "Notice to Appear," charging him as removable, before he reached the ten-year threshold since he would continue to accrue time during immigration proceedings. Relying on Pineda's advice, Lara-Torres signed an asylum application and asked Pineda to complete it. Pineda complied and submitted it to the INS on March 7, 1997. The application listed Lara-Perez as a derivative applicant.

Barely three weeks later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546, took effect, ushering in the sweeping substantive and terminological changes foretold by Pineda. One of the anticipated changes impacted the Petitioners differently than Pineda had suggested. Pineda had accurately reported that IIRIRA would eliminate "suspension of deportation," IIRIRA § 308(b)(7), 110 Stat. at 3009-615 (repealing 8 U.S.C. § 1254), and institute a replacement form of relief — "cancellation of removal" — requiring ten years continuous presence, id. § 304(a)(3), 110 Stat. at 3009-594 to 3009-596 (codified as amended at 8 U.S.C. § 1229b). However, Pineda wrongly predicted the effect IIRIRA's "stop-time" provision would have on the Petitioners' application for cancellation of removal. As alluded to above, Pineda took the position that the provision would not be applied "retroactively" to aliens who submit asylum applications prior to April 1, 1997. This view has not withstood judicial scrutiny. See, e.g., Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir.2003). By its terms, the stop-time provision halts an alien's accrual of physical presence as of the date the INS files a Notice to Appear. 8 U.S.C. § 1229b(d)(1).

Thus, it turned out to be critical that the INS file an Order to Show Cause against the Petitioners before April 1, 1997, instead of a Notice to Appear shortly thereafter. Come April 1, having met the seven-year physical presence requirement for suspension of deportation would no longer matter. Being shy of the ten years necessary for cancellation of removal risked making Petitioners ineligible for any relief if the INS filed a Notice to Appear before they achieved ten years "continuous physical presence." Given Petitioners' status, Pineda's strategy was a much greater gamble than they had been led to believe, and a near sure loser at that. By the Petitioners' calculations, whose accuracy we assume, Pineda filed the March 7 asylum application far too late to sneak through the remaining window of availability for suspension of deportation; at least seven to eight weeks typically passed between filing an asylum application and being charged by the local INS office.

True to its average, the INS filed a Notice to Appear on May 5, 1997. At their hearing before the IJ on July 7, 1997, the Petitioners withdrew their application for asylum. The IJ found them removable and denied their application for cancellation of removal since they had not accrued the required ten years continuous physical presence.

The Petitioners filed an appeal with the Board, which was dismissed on May 30, 2001. The Board did not properly deliver the decision to the Petitioners' counsel of record, and thus was forced to reissue the dismissal on December 28, 2001. We considered this ruling on September 13, 2002, and granted a petition for review because the Board failed to attach a copy of its May 30, 2001, order to the December 28, 2001, reissuance. On January 30, 2003, the Board again attempted to reissue its decision of May 30, 2001, but again neglected to attach a copy of the actual order. One of the Petitioners' three current petitions seeks relief from this failure.

The other two petitions address the issue at the heart of this case: whether Pineda provided constitutionally infirm assistance of counsel. Following the Board's December 28, 2001, dismissal, the Petitioners filed a motion to reopen the matter based on a claim of ineffective assistance of counsel. The Board denied this motion on June 25, 2002, on two grounds: (1) the Petitioners failed to comply with the procedural requirements established in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (2) Pineda's legal approach was a tactical miscalculation, not ineffective assistance. The Board subsequently rejected the Petitioners' motion to reconsider the June 25, 2002, refusal to reopen. Although the Board reversed itself with respect to the alleged Lozada deficiencies, it upheld its determination that Pineda's litigation strategy was tactical. The Petitioners separately petitioned for review of each denial. We consolidated all three petitions in an order dated May 6, 2003.

II.

We turn first to the ineffective assistance claims in the Petitioners' motion to reopen and motion to reconsider. We review the Board's denials of both motions for an abuse of discretion. We must uphold the Board's ruling "[u]nless [it] acted arbitrarily, irrationally, or contrary to law." Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir.2003) (internal quotation marks and citations omitted). Questions of law are reviewed de novo, Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999), as are claims of due process violations, Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000).

Petitioners' briefs and oral argument posit that Pineda's assistance was ineffective in essentially two ways, both of which entail allegedly erroneous legal positions. First, the Petitioners maintain that Pineda should have pursued a different strategy to secure for them the right to remain lawfully and permanently in the United States. Second, the Petitioners aver that Pineda misinformed them on the relevant law and available legal options.

In asserting that Pineda's legal services were defective on these grounds, the Petitioners misconstrue the effective assistance of counsel right applicable to immigration matters. To be certain, evidence of ineffective assistance of counsel can be a ground for reopening immigration proceedings. See Iturribarria v. INS, 321 F.3d 889, 894-97 (9th Cir.2003). But since deportation and removal proceedings are civil, they are "not subject to the full panoply of procedural safeguards accompanying criminal trials," including the right to counsel under the Sixth Amendment. Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir.1986). Instead, the extent to which aliens are entitled to effective assistance of counsel during these proceedings is governed by the Fifth Amendment due process right to a fair hearing. Id. To establish a due process violation, the Petitioners must make two showings: (1) the alleged ineffective assistance rendered "the proceeding... so fundamentally unfair that [they were] prevented from reasonably presenting [their] case," Iturribarria, 321 F.3d at...