Reyes v. Ashcroft

• Decision Date: 12 November 2003
• Docket Number: No. 02-71640.,02-71640.
• Citation: 348 F.3d 1126
• Parties: Pedro Vilarde Reyes, Petitioner, v. John Ashcroft, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

348 F.3d 1126

Pedro Vilarde Reyes, Petitioner, v. John Ashcroft, Attorney General, Respondent.

No. 02-71640.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 13, 2003.

Filed November 12, 2003.

Bert M. Vega, Vallejo, California, for the petitioner.

Leslie Cayer Ohta and Arthur L. Rabin, Department of Justice, Washington, D.C., for the respondent.

Before: J. Clifford Wallace, Cynthia Holcomb Hall, and Diarmuid F. O'Scannlain, Circuit Judges.

Argued and Submitted August 13, 2003 — San Francisco, California.

OPINION

WALLACE, Senior Circuit Judge.

Pedro Vilarde Reyes petitions for review of a Board of Immigration Appeals (Board) order denying his motion to reopen deportation proceedings. Reyes argues that the Board abused its discretion because his motion to reopen substantially complied with the Board's threshold procedural requirements outlined in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). We have jurisdiction to review the Board's decision pursuant to 8 U.S.C. § 1252(b). Monjaraz-Munoz v. INS, 327 F.3d 892, 894 (9th Cir.2003). We conclude that the Board did not abuse its discretion, and we deny Reyes's petition for review.

I.

Reyes, a native and citizen of the Philippines, entered the United States on a non-immigrant visa on February 5, 1990. He remained in the United States after his visa's May 30, 1990, deadline, and a notice to appear issued more than eight years later on September 24, 1998. The notice charged Reyes with being subject to removal pursuant to section 237(a)(1)(B) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1227(a)(1)(B), because he remained in the United States beyond his visa's expiration. Reyes responded by filing an asylum application, alleging that he would more likely than not suffer "threats, attempts againsthis life, and possible torture and death" at the hands of a government-backed paramilitary group if returned to the Philippines.

On February 8, 1999, Reyes appeared at his deportation hearing accompanied by his attorney of record, Armando G. Salazar, and Salazar's associate, Nadeem H. Makada. The Immigration Judge (IJ) immediately rescheduled the hearing for March 29, 1999, and Reyes returned on the appointed date with Makada. At the second hearing, Reyes admitted the allegations contained in the notice to appear and conceded deportability. The IJ designated the Philippines as Reyes's potential destination for deportation and scheduled a hearing for March 9, 2000, to consider Reyes's asylum application.

On February 3, 2000, the IJ rescheduled Reyes's hearing for March 2, 2001, and properly notified Salazar of the changed date. When Reyes failed to appear with his attorney for this rescheduled hearing, the IJ issued a removal order and granted Salazar's motion to withdraw as Reyes's counsel of record.

Reyes thereafter obtained new counsel and moved to reopen his deportation proceedings on October 4, 2001. In his motion to reopen, Reyes argued that he was denied effective assistance of counsel because Salazar never informed him of the March 2, 2001, hearing. Reyes submitted with his motion a copy of a letter complaining about Salazar, which he allegedly sent to the California State Bar. The letter contains a line stating "cc: Armando G. Salazar," but the letter is neither dated nor notarized, and Reyes has not shown that it actually reached the addressees. The letter discusses Reyes's relationship with Salazar and asserts that Salazar negligently failed to notify Reyes that the hearing had been rescheduled for a later date. Reyes allegedly "kept Salazar abreast of his new phone numbers ... and his new address," but Salazar did not communicate with Reyes in the months preceding the final deportation hearing from which he was absent.

On October 23, 2001, the IJ denied Reyes's motion to reopen on two grounds: first, Reyes failed to furnish a personal affidavit outlining his agreement with Salazar and describing Salazar's alleged misconduct; and second, the IJ found no evidence that Reyes had notified Salazar of his ineffective assistance allegations or that Salazar accepted responsibility for failing to notify Reyes of the final deportation hearing. Citing Lozada and related Ninth Circuit decisions, the IJ denied Reyes's motion to reopen. On May 9, 2002, the Board summarily affirmed the IJ's decision, and Reyes filed a timely petition for review.

II.

We review the Board'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, Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). Because the Board summarily affirmed the IJ's ruling on Reyes's motion to reopen, we look to the IJ's decision in deciding whether the Board abused its discretion. Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000).

A.

The Board may rescind the in absentia deportation order of Reyes if he demonstrates that he failed to appear due to "exceptional circumstances." Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). The INA defines exceptional circumstances as "circumstances (such as a serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1229a(e)(1). Ineffective assistance of counsel qualifies as an exceptional circumstance warranting rescission pursuant to section 1229a(b)(5)(C)(i). Lo v. Ashcroft, 341 F.3d 934, 936-37 (9th Cir.2003), citing In re Rivera-Claros, 21 I. & N. Dec. 599, 602 (BIA 1996), and In re Grijalva-Barrera, 21 I. & N. Dec. 472, 474 (BIA 1996).

Although the Sixth Amendment's effective counsel right does not attach to deportation proceedings, see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), Reyes enjoys, in deportation proceedings, a Fifth Amendment due process right to effective assistance of the counsel he retained. Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir.1986). In the deportation context, "ineffective assistance of counsel ... results in a denial of due process under the Fifth Amendment only when the proceeding is so fundamentally unfair that the alien is prevented from reasonably presenting her case." Iturribarria v. INS, 321 F.3d 889, 899 (2003). Reyes generally must also demonstrate prejudice, i.e., that "the performance of counsel was so inadequate that it may have affected the outcome of the proceedings." Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999); see also Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir.2002); but see Lo, 341 F.3d at 939 n. 6.

Before the Board will consider an ineffective assistance of counsel claim, however, Reyes first must satisfy Lozada's threshold procedural requirements. Iturribarria, 321 F.3d at 900, citing Ontiveros-Lopez v. INS, 213 F.3d 1121, 1123 (9th Cir.2000). He must provide "(1) an affidavit by the alien setting forth the agreement with counsel regarding the alien's representation; (2) evidence that counsel was informed of the allegations and allowed to respond; and (3) an indication that a complaint has been lodged with the bar, or reasons explaining why not." Lata, 204 F.3d at 1246, citing Lozada, 19 I. & N. Dec. 637, at 639.

When we apply Lozada, our primary concern is to effectuate the purposes underlying its requirements. Three policy goals predominate. First, by forcing petitioners to provide a clear and detailed exposition of their factual allegations, Lozada furnishes "a basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board." Lozada, 19 I. & N. Dec. at 639. Second, Lozada enhances the Board's ability to weed out false and frivolous claims. Requiring sworn affidavits and formal grievance letters reduces petitioners' ability to slip meritless claims past the Board, as does the requirement that petitioners notify their former counsel concerning the ineffective assistance allegations. Id. Finally, Lozada promotes professional responsibility by "highlighting the standards which should be expected of attorneys who represent persons in immigration proceedings." Id. at 639-40.

Here, the IJ denied Reyes's motion to reopen because Reyes did not submit a proper affidavit and provided no evidence that he informed Salazar regarding the ineffective assistance allegations. Reyes concedes that his motion cannot survive a strict construction of the Lozada requirements because he did not file the requisite affidavit. Instead, he contends that his putative complaint letter substantially complies with all three Lozada criteria: (1) the letter substitutes for a personal affidavit because it describes Reyes's former attorney-client relationship with Salazar and outlines the basic factual allegations upon which his ineffective assistance claim relies, (2) the letter's "cc:" to Salazar provides some evidence that Salazar received notice of Reyes's ineffective assistance allegations, and (3) the letter shows that Reyes filed a proper complaint with the California State Bar. Given the alleged substantial compliance, Reyes argues that the IJ therefore abused his discretion by denying the motion to reopen.

B.

In assessing Reyes's substantial compliance argument, we look to our prior Lozada decisions for guidance. Two general principles emerge. First, we have recognized that "the Lozada requirements are generally reasonable, and under ordinary circumstances the Board does not abuse its discretion when it denies a motion to remand or reopen based on alleged ineffective assistance of counsel where the petitioner fails to meet the requirements of Lozada." Castillo-Perez, 212 F.3d at 525; see also Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999) (declaring that "to establish ineffective assistance of counsel in a motion to reopen, an alien...