Morales Apolinar v. Mukasey
| Decision Date | 24 January 2008 |
| Docket Number | No. 04-73484.,No. 04-75248.,04-73484.,04-75248. |
| Citation | 514 F.3d 893 |
| Parties | Maria Edith MORALES APOLINAR, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Maria Edith Morales Apolinar, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maria Janossy, Glendale, CA, for the petitioner.
Michael B. Mukasey, Attorney General; David M. McConnell, Deputy Director; Kurt B. Larson, Trial Attorney, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-706-903.
Before: HARRY PREGERSON, HAWKINS, and RAYMOND C. FISHER, Circuit Judges.
Maria Edith Morales Apolinar ("Morales") petitions for review of two decisions of the Board of Immigration Appeals ("BIA"): one dismissing her appeal of an Immigration Judge's ("IJ") denial of cancellation of removal and rejecting her claim that James Robert Valinoti ("Valinoti")1 provided ineffective assistance (No. 04-73484) and another denying her motion to reconsider its earlier decision (No. 04-75248). We have jurisdiction under 8 U.S.C. § 1252. We grant relief and remand for a merits hearing on Morales's cancellation of removal application.
Morales is a twenty-eight year-old native and citizen of Mexico. She testified that she first entered the United States in December 1986 without inspection and has not left since. She is the single mother of two native-born United States citizen children, Luis Angel Luna Morales, age eleven, and Karla Luna Morales, age nine. Neither child can read or write Spanish. Morales testified that her youngest child, Karla, has asthma and has undergone surgery for a neck tumor. She also testified that Karla takes medication four times a day and receives monthly medical visits. Morales and her children live with extended family members, including Morales's mother and grandparents. Morales began working as a babysitter in 1996 and as a self-employed housekeeper in 1999.
In 2000, Morales filed an application for asylum, which was denied. On July 17, 2000, she was charged with being an alien present in the United States without admission or parole, in violation of the Immigration and Nationality Act, Section 212(a)(6)(A)(i). On October 12, 2000, Morales was represented by then-attorney James Robert Valinoti at a master calendar hearing. She conceded the charge of removability, and the IJ found Morales removable to Mexico. Morales Pled a cancellation of removal application on February 6, 2001. The IJ conducted an individual merits hearing on December 19, 2002.
At the conclusion of the hearing, the IJ denied Morales's application for cancellation of removal, after finding that Morales failed to establish two of the four requirements: (1) continuous physical presence for at least ten years preceding the application and (2) "exceptional and extremely unusual hardship" to a qualifying relative. See 8 U.S.C. § 1229b(b)(1)(A), (D).2
On appeal to the BIA, through newly retained counsel, Maria Janossy, Morales argued that her former attorney, Valinoti, provided ineffective assistance. She alleged Valinoti failed to proffer available witnesses and documents that would have established her continuous physical presence and failed to develop her hardship case. The BIA denied her petition on the ground that she failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and then subsequently denied her motion to reconsider. Morales timely appealed.
"We review de novo claims of due process violations in deportation proceedings." Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002) (quoting Perez-Lastor v. INS, 208 F.3d 773, 77 (9th Cir.2000)). We review the BIA's denial of a motion to reconsider for abuse of discretion, although "de novo review applies to the BIA's determination of purely legal questions." Id. (quoting Mejia v. Ashcroft 298 F.3d 873, 876 (9th Cir.2002)).
The BIA abused its discretion when it dismissed Morales's ineffective assistance claim for failure to comply with the procedural requirements of Lozada.
Under Lozada, the BIA generally requires a petitioner claiming ineffective assistance of counsel to: (1) submit an affidavit demonstrating and explaining her agreement with prior counsel regarding legal representation; (2) inform prior counsel of the accusations and allow counsel an opportunity to respond;, and (3) indicate whether a complaint has been filed with the appropriate disciplinary authorities. Id. at 639.
In practice, we have been flexible in our application of the Lozada requirements. The Lozada factors are not rigidly applied, especially where their purpose is fully served by other means. See, e.g., Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir.2000) (); see also Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir.2006) (). Indeed, "we seldom reject ineffective assistance of counsel claims solely on the basis of Lozada deficiencies." Fong Yang Lo v. Ashcroft, 341 F.3d 934, 937 n. 4 (9th Cir.2003).
We conclude that Morales substantially complied with the Lozada requirements. The attorney-client arrangement between Morales and Valinoti is evident from Valinoti's on-the-record appearances on her behalf.3 Additionally, Morales submitted a sworn declaration explaining the conduct that substantiated her ineffective assistance claim. The declaration stat that: (1) Valinoti relied on Estela Rodriguez, a non-attorney immigration consultant, or notario, to perform the legal work; (2) Valinoti failed to submit available documents that would have supported her showing of continuous physical presence; (3) Valinoti failed to call witnesses who were able and willing to testify to her continuous physical presence; and (4) Valinoti failed to establish Morales's mother as a qualifying relative for hardship analysis purposes. Although Morales did not report Valinoti's misconduct to a disciplinary authority or confront Valinoti directly, as required under Lozada, we conclude that such action would have been futile under the circumstances.
Just twelve days after Morales's hearing before the IJ, Valinoti was suspended from the practice of law in the state of California for five years. In a 100-page decision, the California State Bar Court found that Valoniti had committed eighteen counts of misconduct in nine cases and five additional counts of uncharged but proven misconduct. In re Valinoti, No. 96-O-08095, 2002 WL 31907316 (Cal.Bar Ct. Dec. 31, 2002).4 Valinoti subsequently resigned from the State Bar of California.
After the State Bar Court issued its decision, the Executive Office for Immigration Review petitioned for Valinoti's immediate suspension from practice before the BIA and Immigration Courts. The IJs were aware of Valinoti's underhanded practices for quite some time. Valinoti, 2002 WL 31907316, at *24 ().5 The Department of Homeland Security likewise petitioned for Valinoti's suspension from practice before that agency. Valinoti was required to file a timely answer to these allegations of misconduct, see 8 C.F.R. § 1003.105(c)(1), but he failed to do so. In re Valinoti, No. D2000-034, at 1 (MA Oct. 8, 2003), available at http://www.usdoj.gov/eoir/profcond/ FinalOrders/ValinottiJamesR-FnlOrd.pdf. His failure to respond constituted an admission of the allegations, see 8 C.F.R. § 1003.105(d)(1), and Valinoti was consequently suspended from practicing before the BIA, the Immigration Courts, and the Department of Homeland. Security. See In re Valinoti, No. D2000-34, at 2.
We conclude that, in cases where a petitioner's attorney has been suspended after failing to respond to prior charges of ineffective assistance, it would be futile for the petitioner to inform counsel of the accusations or file a complaint, and Morales's failure to do so therefore does not bar her ineffective assistance of counsel claim.
This decision comports with the policy goals of Lozada, which are "to provide a framework within which to assess the bona fides of the substantial number of ineffective assistance claims asserted, to discourage baseless allegations and meritless claims, and to hold attorneys to appropriate standards of performance." Fong Yang Lo, 341 F.3d at 937. Sadly, "the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice." See Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir.2005) (Posner, J.). All too often, vulnerable immigrants are preyed upon by unlicensed notarios and unscrupulous appearance attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation. Despite widespread awareness of these abhorrent practices,6 the lamentable exploitation of the immigrant population continues, and the BIA's insistence upon strict compliance with Lozada in cases where such compliance would clearly be futile only worsens the plight of the immigrant.
Since it would have been futile for Morales to confront Valinoti and file a complaint, the BIA abused its discretion in dismissing Morales's claim of ineffective assistance of counsel for failure to strictly comply with Lozada.
As an alternative ground for dismissing Morales's ineffective assistance, of counsel claim, the BIA erroneously concluded that Morales's "former attorney's advice does not appear to have biased her claim." In the context of...
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