Ray v. Gonzales

• Decision Date: 01 March 2006
• Docket Number: No. 03-72501.,03-72501.
• Citation: 439 F.3d 582
• Parties: Jaib Singh RAY, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

439 F.3d 582

Jaib Singh RAY, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-72501.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Opinion withdrawn February 23, 2006.

Filed March 1, 2006.

Abbe M. Goncharsky, Lewis and Roca LLP, Tucson, AZ, for the petitioner.

Kristin Cabral, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-306-989.

Before B. FLETCHER, JOHN R. GIBSON,^* and MARSHA S. BERZON, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Jaib Singh Ray, a native and citizen of India, seeks asylum in the United States. An immigration judge (IJ), however, denied Ray's application for asylum, and the Board of Immigration Appeals (BIA) summarily affirmed the IJ's decision because Ray failed to file a brief on appeal. Ray submitted to the BIA two motions to reopen his case, and the BIA denied both of these motions on procedural grounds. Ray now petitions for review of the BIA's decision to deny his second motion to reopen.

We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252. We grant Ray's petition, and we remand with instructions for the BIA to consider the merits of his first motion to reopen.

I.

Ray entered the U.S. without inspection at Brownsville, Texas, on January 17, 1997. Two months later, on March 17, 1997, Ray applied for asylum. In June of 1998, he appeared with his attorney, Jang Im, from the Law Offices of Madan Ahluwalia, for a hearing on the merits of his asylum application. At his hearing, Ray testified in the Punjabi language through an interpreter. He claimed that he had experienced past persecution and feared future persecution at the hands of the Indian government because of his participation in an organization called Akali Dal, a Sikh separatist group whose political objective is the establishment of an independent state called Khalistani. At the conclusion of the hearing, the IJ found that Ray's testimony was not credible and denied his application for asylum and for restriction on removal. The IJ ordered Ray removed to India.

Ray filed a timely notice of appeal with the BIA in which he stated he would later file a brief in support of his appeal. The notice of appeal did not indicate that Ray was represented by an attorney and provided only Ray's home address as contact information. It did, however, contain a typewritten list of the reasons for the appeal. The list was written in English, reflecting at least some legal expertise and suggesting the preparer's familiarity with asylum law, though it did not include a specific objection to the IJ's adverse credibility determination.

Nearly one year later, the BIA sent a briefing schedule to Ray's home address. The BIA never received a brief in support of Ray's appeal and, as a result, dismissed the appeal. Although the BIA explicitly stated that it was summarily affirming the IJ's decision because of Ray's procedural default, the opinion also stated that, "upon review of the record, we are not persuaded that the Immigration Judge's ultimate resolution of this case was in error."

Ray subsequently retained another attorney, Anthony Egbase, to help with the case. Though there is some dispute about the exact date of retention, the record makes it apparent that Ray arranged for Mr. Egbase's representation only four days after he learned that the BIA had dismissed his appeal,¹ well in advance of both the thirty-day deadline to file a motion for reconsideration (April 17, 2002) and the ninety-day deadline to file a motion for reopening (June 17, 2002). See 8 C.F.R. § 3.2(b)(2) (2002) (motion to reconsider); id. § 3.2(c)(2) (motion to reopen). Nonetheless, both deadlines passed without any action by Mr. Egbase.

Then, on June 18, 2002 — one day after the deadline to file a motion to reopen — Mr. Egbase filed a "Motion to Vacate Order Dismissing Appeal and Motion Requesting Time to File Brief in Support of Appeal." The BIA initially rejected the motion because Mr. Egbase failed to include the required filing fee or request a waiver of the fee. Mr. Egbase resubmitted the motion on June 25, 2002, along with the necessary fee.

In this first motion to reopen, Ray claimed that his first attorney — Jang Im, from the Law Offices of Madan Ahluwalia — was responsible for failing to file the brief on appeal. He stated that he had retained the Law Offices of Madan Ahluwalia "to file an appeal on my behalf." He declared that it would have been impossible for him to represent himself before the BIA because he was not sufficiently proficient in the English language. He stated that he was "shocked" when he received the BIA's notice that his appeal had been dismissed and that he immediately contacted Mr. Im's office, only to find that the firm had moved and had left no forwarding address. This first motion to reopen also contained a declaration from Mr. Egbase stating that it took nearly two months to track down Ray's files from the erstwhile attorneys at Madan Ahluwalia's Law Offices.

On September 23, 2002, the BIA denied Ray's first motion to reopen on procedural grounds.² The BIA's opinion discussed both Ray's failure to file his brief on appeal and his failure to submit his motion to reopen in a timely fashion. The decision concluded by noting that, "despite consulting with counsel, the pending motion was filed late."³ The BIA sent its decision to Mr. Egbase on September 23, 2002.

More than four months after the BIA denied his first motion, Ray obtained the help of an immigration consultant and filed a second motion to reopen. In this pleading — filed February 10, 2003 — Ray claimed that the BIA had abused its discretion in denying his first motion to reopen because Mr. Egbase had provided him with ineffective assistance of counsel, and he renewed his contention that he had been denied due process in his original appeal because of the ineffective assistance of Mr. Im, from the Law Offices of Madan Ahluwalia. In support of his second motion to reopen, Ray attached significant evidence of the ineffective assistance of Mr. Egbase. This evidence included proof that Ray had retained Mr. Egbase just four days after the summary dismissal of his direct appeal, that Mr. Egbase had taken no action until after the deadlines for reopening and reconsideration had passed, and that Mr. Egbase had failed initially to submit the first motion to reopen properly. Ray also demonstrated that he had paid Mr. Egbase more than $5000 between March and June of 2002 for untimely and inadequate assistance.

Moreover, Ray's second motion to reopen presented evidence of the ineffective assistance of yet another attorney, Martin Guajardo, whom Ray hired in August of 2002(just prior to the denial of his first motion to reopen). Ray submitted evidence that he had hired Mr. Guajardo — who has been disciplined by the California State Bar three times — and paid him a total of $10,000 for legal assistance. According to Ray, Mr. Guajardo provided no legal assistance at all. Finally, Ray provided copies of complaints he filed with the California State Bar against both Mr. Egbase and Mr. Guajardo.⁴ He requested that the BIA reopen his case due to the "negligence and inadequate representation [of] those attorneys."

The BIA denied Ray's second motion to reopen as untimely and numerically barred. The BIA's paragraph-long decision stated: "The respondent argued again in the instant motion that he should be granted a new hearing based upon the negligence of his former attorney." Yet the opinion did not directly address Ray's ineffective assistance of counsel arguments. Further, the opinion did not distinguish between Ray's underlying claim of ineffective assistance (involving the failure of the Law Offices of Madan Ahluwalia to submit a brief on direct appeal) and his subsequent and independent claim of ineffective assistance (involving the failures of Mr. Egbase and Mr. Guajardo to assist Ray in having the case reopened). Without any recognition that Ray's second motion to reopen was different in substance from the first, the BIA explained that its regulations did not permit multiple motions to reopen and that Ray had failed to request timely reconsideration of its decision to deny his first motion to reopen. The BIA thus concluded that Ray had failed to comply with both the numerical and temporal restrictions on motions to reopen, and it denied his second motion.

Appearing pro se, Ray filed with the Ninth Circuit a timely petition for review of his second motion to reopen. We review the BIA's decision for abuse of discretion. See Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004).

II.

Because a deportation hearing is a civil proceeding involving non-citizens, aliens involved in such proceedings do not enjoy the full panoply of constitutional rights that American citizens would enjoy in a criminal proceeding. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (describing various constitutional protections unavailable in immigration proceedings). For example, aliens involved in deportation proceedings do not enjoy the Sixth Amendment's guarantee of an attorney's assistance at the government's expense. See Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir.2004).

Yet aliens are not without representational rights. Federal law guarantees an alien the right to obtain counsel of his own choice in "any removal proceedings before an immigration judge," 8 U.S.C. § 1362, and we have explained that this statutory provision stems from a constitutional guarantee of due process, see Rios-Berrios v. INS, 776 F.2d 859, 862 (1985). See also Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003) ("In deportation proceedings, an alien's right to be represented by counsel is based on the due process...