Lariz v. Immigration & Naturalization Serv.
| Decision Date | 13 March 2002 |
| Docket Number | 01-70006,9 |
| Parties | NICOLAS; MARIA DE JESUS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT |
| Court | U.S. Court of Appeals — Ninth Circuit |
On Petition for Review of an Order of the Immigration and Naturalization Service INS Nos. A74-810-151; A74-810-152
Counsel Victor D. Nieblas Pradis, Los Angeles, California, for the petitioners. Heather R. Phillips, Civil Division. U.S. Department of Justice, Washington, D.C., for the respondent.
Before: Harry Pregerson, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.
OPINION
Petitioners Nicolas Rodriguez-Lariz and Maria de Jesus Guevara-Martinez were granted voluntary departure to Mexico after their legal representatives failed timely to file applications for suspension of deportation under 244 of the Immigration and Naturalization Act ("INA"). Petitioners' appeal was dismissed by the Board of Immigration Appeals ("BIA"), and their subsequent motion for reconsideration was denied. Petitioners then filed a motion to reopen their deportation proceedings, arguing that they were prevented from timely filing their applications for suspension of deportation due to ineffective assistance of counsel and that exceptional circumstances warranted reopening their case. The BIA denied this motion and petitioners timely petition for review. We grant the petition and reverse the BIA.
Petitioners are Mexican nationals who entered the United States in 1988 and have lived here continuously since that time. Petitioners are married with two citizen-children, Nico and Janet.
In their motion to reopen filed with the BIA, petitioners made a series of factual allegations that form the basis of this appeal. The government does not directly dispute these allegations, which are set forth below.
Petitioners allege that in an attempt to legalize their immigration status in the United States, they originally contacted Oscar Torres, who had been recommended to them as an immigration specialist. Torres, who could only be contacted by phone, indicated that petitioners had a promising case and agreed to help them secure legal resident status. After petitioners paid Torres $600, he filed an application for asylum, which was denied at the administrative level.
On July 3, 1996, petitioners were served with an Order to Show Cause and Notice of Hearing alleging that they were subject to deportation for entry without inspection under 241(a)(1)(B) of the INA, and setting an immigration court hearing on September 5, 1996. On that date, petitioners met Torres at the immigration court and paid him another $600. At that time, Torres introduced petitioners to Jorge Cabrera, an attorney who Torres had arranged to represent them in front of the Immigration Judge ("IJ").
During the hearing, Cabrera told the IJ that respondents (petitioners here) conceded deportability and moved the court to grant suspension of deportation or, in the alternative, voluntary departure. Cabrera withdrew petitioners' asylum application. When asked by the IJ if he agreed to withdraw his asylum application and instead pursue suspension of deportation, petitioner Rodriguez assented to that course of action. The IJ then adjourned the hearing until March 5, 1997, and instructed petitioners to file their application for suspension of deportation by February 15, 1997. The IJ concluded by stating that "if these applications are not submitted on or before that date, I shall consider the [petitioners] have waived their opportunity, under 8 C.F.R. 3.31c, to file such applications and I will only consider what other relief would be available to them at the time that we meet."
According to petitioners, after the hearing, Torres gave them a list of the documents that he needed to complete their applications. On September 30, 1996, Torres retrieved the documents from the petitioners, advising them "just to wait for the next hearing and he would be in charge of everything else." Rodriguez subsequently made several calls to Torres, who told him that "everything was fine" and that he and the attorney "were handling everything." Petitioners' applications for suspension of deportation were filed on February 21, 1997, which was after the filing deadline set by the IJ.
On March 5, 1997, Rodriguez met Torres at the immigration court and paid him $700 for the day's representation. Although petitioners expected to be represented by Cabrera again, he never arrived. Instead, immediately before the hearing, Torres introduced petitioners to Stephen Alexander, who was to represent them during the day's proceedings.
At the hearing, the IJ indicated that the application for suspension of deportation had not been filed with the court. This was the first indication petitioners had that their applications might not have been filed. The court went into recess during which petitioners assert that Alexander stated that he had no idea what had happened to the applications and the best he could do was to agree to voluntary departure. When the hearing resumed, petitioners agreed to depart voluntarily and the IJ granted them a six-month voluntary departure period. In his decision, the IJ stated that since the applications for suspension for deportation had not been timely filed, petitioners had waived their eligibility for such discretionary relief.
After the hearing, petitioners met with Alexander and Torres, who assured petitioners that the applications had been filed, but claimed that the IJ lost them. Torres left to investigate what had happened and later showed up at petitioners' home, stating that the IJ had indeed lost the applications. Torres told petitioners that "an appeal would resolve all the problems" and charged them $350 to pursue the appeal. A notice of appeal was filed on March 31, 1997, which contained Rodriguez's signature. The notice of appeal stated that the IJ had erred in denying petitioners' applications for suspension of deportation.
Rodriguez paid Torres an additional $1,200 to file his appellate brief to the BIA.1 The brief, filed on February 11, 1998, argued that the IJ erred in denying petitioners' applications for suspension of deportation by ignoring substantial evidence of their eligibility for such relief. In particular, petitioners contended that they would suffer extreme hardship if deported since they were "americanized," did not know "the social atmosphere and employment system of Mexico, " did not know anybody in Mexico that could help them, had American children who would encounter problems with the Mexican immigration authorities, and would generally suffer "extreme emotional, financial and physical hardship."
On November 23, 1998, the BIA dismissed petitioners' appeal. The BIA focused on petitioners' failure timely to file their suspension applications and noted that petitioners had "offered no explanation to the Immigration Judge for the late submission, and on appeal did not address their tardiness." The BIA stated that The BIA gave petitioners 30 days to voluntarily depart the country.
On December 23, 1998, Rodriguez filed a pro se motion for reconsideration, which he claims was prepared by Torres. The motion essentially repeated the substance of petitioners' previous appeal. The BIA denied this motion on June 13, 2000, concluding that petitioners had not identified any legal or factual error in the previous decision.
On July 10, 2000, petitioners, represented by current counsel, filed the instant successive motion to reopen, arguing that they were prevented from timely filing their suspension applications due to the ineffective assistance of counsel and that exceptional circumstances existed that warranted reconsideration. On December 4, 2000, the BIA denied this motion and this petition for review followed.
This Court reviews the BIA's ruling on a motion to reopen for an abuse of discretion. Shaar v. INS, 141, F.3d 953, 955 (9th Cir. 1998). 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 in deportation proceedings, CastilloPerez v. INS, 212 F.3d 518, 523 (9th Cir. 2000).
We must first decide whether we have jurisdiction to review the BIA's denial of petitioners' successive motion to reopen. The transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by the Extension of Stay in United States for Nurses Act, Pub. L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996), apply to this appeal, since deportation proceedings began in this case before April 1, 1997 (July 3, 1996) and a final order of deportation was entered after October 30, 1996 (March 5, 1997). See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997) (). Under 309(c) of IIRIRA, this Court has jurisdiction to review a BIA decision under pre-IIRIRA 106(a) of the INA, 8 U.S.C. 1105a(a), unless a specified exception applies. One of the specified exceptions precludes judicial review of "any discretionary decision under section . . . 244 of the [INA] . . . ." IIRIRA 309(c)(4)(E).
Under IIRIRA's transitional rules, we have jurisdiction to review the BIA's denial of a motion to reopen when a petitioner is ordered deported under 241 of the INA. See Arrozal v. INS, ...
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