Larin-Dominguez v. Holder

• Decision Date: 17 May 2013
• Docket Number: No. 09-73105,Agency No. A014-185-015,09-73105
• Parties: OSCAR ARMANDO LARIN-DOMINGUEZ, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

OSCAR ARMANDO LARIN-DOMINGUEZ, Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General, Respondent.

No. 09-73105
Agency No. A014-185-015

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED: May 17, 2013

NOT FOR PUBLICATION
MEMORANDUM^*
On Petition for Review of an Order of the Board of Immigration Appeals
Argued February 5, 2013 Submitted May 16, 2013 Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

Oscar Armando Larin-Dominguez, a citizen of El Salvador, appeals the Board of Immigration Appeals' ("BIA") denial of his motion to reopen his 2004 removal proceeding so that he can apply for cancellation of removal. Larin-Dominguez claims that: (1) he received ineffective assistance of counsel at his

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2004 hearing; (2) his due process rights were violated when the Immigration Judge ("IJ") failed to adequately advise him regarding his right to counsel; and (3) his waiver of appeal was not considered and intelligent. The BIA denied Larin-Dominguez's motion on the grounds that he failed to establish prejudice and validly waived appeal of the removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252.¹ We grant Larin-Dominguez's petition and remand.

Larin-Dominguez's motion to reopen was not filed within ninety days of the entry of his removal order as required by 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). However, he is entitled to equitable tolling of the filing deadline because of ineffective assistance of counsel. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1191-93 (9th Cir. 2011) (noting that the filing period for a motion to reopen is subject to equitable tolling on the basis of ineffective assistance of counsel). We

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review the BIA's denial of Larin-Dominguez's motion to reopen for abuse of discretion. He v. Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007).

1. The BIA abused its discretion in finding that Larin-Dominguez was not prejudiced by his counsel's failure to appear at the 2004 removal hearing. Had Larin-Dominguez been represented by competent counsel at the time of his removal hearing, he could have plausibly obtained relief from deportation. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) ("Prejudice is found when the performance of counsel was so inadequate that it may have affected the outcome of the proceedings." (quoting Castillo-Perez v. INS, 212 F.3d 518, 527 n.12 (9th Cir. 2000))); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004) (finding prejudice established where evidence in the record "could plausibly have supported a finding that [the petitioner] was eligible for relief" (alteration and internal quotation marks omitted)).

Although our opinion in Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. 2004)—under which Larin-Dominguez's cocaine possession conviction would no longer qualify as an aggravated felony for immigration purposes—had been...