Maravilla Maravilla v. Ashcroft

• Decision Date: 19 August 2004
• Docket Number: No. 03-70467.,03-70467.
• Citation: 381 F.3d 855
• Parties: Javier MARAVILLA MARAVILLA; Claudia Lopez Sanchez, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

381 F.3d 855

Javier MARAVILLA MARAVILLA; Claudia Lopez Sanchez, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 03-70467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 2004.

Filed August 19, 2004.

Petition for review from the Board of Immigration Appeals.

Robert B. Jobe, San Francisco, CA, for the petitioners.

Michelle R. Thresher and Thomas K. Ragland, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

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

Before B. FLETCHER, LEAVY, and BERZON, Circuit Judges.

PER CURIAM:

Javier Maravilla Maravilla ("Maravilla") and his wife, Claudia Lopez Sanchez ("Lopez"), natives and citizens of Mexico, petition for review of a decision of the Board of Immigration Appeals ("BIA") denying their motion to reopen their applications for cancellation of removal, which was based on an ineffective assistance of counsel claim. This court has jurisdiction under 8 U.S.C. § 1252(b)(2). We grant the petition and remand for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioners are husband and wife, who were charged with being present in the United States without having been admitted or paroled. They hired attorney Miguel Gadda to represent them, admitted the charges, and applied for cancellation of removal. At their first hearing, however, Gadda failed to appear. The Immigration Judge ("IJ") expressed frustration with Gadda's performance — or rather, his lack thereof — and, along with counsel for the INS, advised petitioners as to what evidence they could present at the re-scheduled hearing.

Although Gadda did appear at the second hearing, petitioners' application for cancellation of removal was denied. The IJ stated that Lopez had failed to provide evidence of her ten-year continuous physical presence, and that, in any case, petitioners' removal would not visit exceptional and extremely unusual hardship on their children or on Maravilla's father, the only qualifying relatives.

Still represented by Gadda, petitioners appealed to the BIA. While the appeal was pending, however, Gadda was disbarred from the practice of law before the Board.¹ After the BIA summarily affirmed the IJ's opinion, petitioners hired new counsel and timely moved to reopen on grounds of ineffective assistance of counsel. They claimed that Gadda had failed to explain to them the evidentiary requirements of a successful application for cancellation of removal, and had failed adequately to prepare for and argue their case. Crucially, they argued, Gadda overlooked the fact that, after the IJ decision, Maravilla's mother became a lawful permanent resident. As she was now a qualifying relative whose hardship counted towards petitioners' application on appeal, Gadda should have supplemented the appellate brief with this new information. Further, Gadda never asked petitioners whether they would take their children with them if deported. Petitioners accompanied their motion to reopen with new evidence of Lopez's continuous presence, with declarations stating that they would leave their children behind, and with affidavits from Maravilla's parents on the hardship they would suffer if petitioners were deported.

The BIA denied the motion, concluding that petitioners failed to show that their case outcome "would have been different but for the alleged ineffectiveness" of counsel. The BIA held the new evidence of continuous presence and of the grandmother's hardship barred, as that evidence was available and "could have, and should have" been presented previously. Further, the BIA deemed the evidence of the hardship of the children and of Maravilla's father to support a motion to reconsider, rather than a motion to reopen. As such, the motion was untimely, and in any case it failed to show exceptional and extremely unusual hardship.

We review a BIA ruling on a motion to reopen for an abuse of discretion, and will reverse the denial of a motion to reopen only if the Board acted "arbitrarily, irrationally, or contrary to law." Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (quotation marks and citation omitted). BIA factual findings are reviewed for substantial evidence. Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.2000). Questions of law are reviewed de novo. Id.

II. ANALYSIS

Ineffective assistance of counsel in a removal proceeding amounts to a violation of due process under the Fifth Amendment if "the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985). Such a claim requires two showings. Petitioners first must demonstrate "that counsel [failed to] perform with sufficient competence." Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004). Second, they must show that they were prejudiced by their counsel's performance. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003).

So far afield of the proper two-pronged analysis is the Board's opinion, however, that it is unclear whether it actually treated petitioners' motion as an ineffective assistance of counsel claim. At times the Board casts the claim instead as a motion to reconsider, writing: "In essence, the respondents seek reconsideration of [the] hardship issue to their children and the male respondent's father." That characterization misdescribes an ineffective assistance of counsel claim, which is, rather, a due process challenge. We have held that an ineffective assistance of counsel claim that relies on "new evidence that was purportedly not discoverable at an earlier stage" is properly treated as a motion to reopen rather than a motion to reconsider. See id. at 897.

At other times, the BIA casts the...