Salazar-Gonzalez v. Lynch, No. 11–73600.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtMcKEOWN, Circuit Judge
Citation798 F.3d 917
Docket NumberNo. 11–73600.
Decision Date20 August 2015
PartiesAlfredo SALAZAR–GONZALEZ, aka Alfredo Salazar–Gonzales, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.

798 F.3d 917

Alfredo SALAZAR–GONZALEZ, aka Alfredo Salazar–Gonzales, Petitioner
v.
Loretta E. LYNCH, Attorney General, Respondent.

No. 11–73600.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 20, 2015.*
Filed Aug. 20, 2015.


798 F.3d 918

Carolyn Chapman, Law Office of Carolyn Chapman, San Diego, CA, for Petitioner.

Stefanie A. Svoren–Jay, Trial Attorney, and John S. Hogan, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C.; Stuart F. Delery, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A094–965–975.

Before: SIDNEY R. THOMAS, Chief Judge and M. MARGARET McKEOWN and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

Sometimes, it is difficult to distinguish between a client's bad luck and a lawyer's bad advice. Risk is an inherent part of litigation, and lawyers must weigh countless

798 F.3d 919

probabilities when advising their clients on what claims to pursue, motions to file, and arguments to raise. This case, however, involves no dynamic assessment of risk: Salazar–Gonzalez's lawyer advised him to pursue a form of immigration relief that Salazar–Gonzalez was statutorily ineligible to receive. Steering a client into such a dead-end is not a “tactical decision[ ],” as the Board of Immigrations Appeals put it. It is ineffective assistance of counsel. Although we have observed that “[a] lawyer is often the only person who could thread the labyrinth” of the immigration laws, Castro–O'Ryan v. I.N.S., 847 F.2d 1307, 1312 (9th Cir.1988), that observation breaks down when the lawyer does not know the way. We grant the petition and remand with instructions to grant the motion to reopen.

Background

Alfredo Salazar–Gonzalez1 is a native and citizen of Mexico. He came to the United States when he was two years old, and his wife and two children are all United States citizens. His parents also reside in the United States as lawful permanent residents.

Salazar–Gonzalez was present in the United States illegally in 2008 when he was detained by immigration authorities. He was charged with removability and placed in removal proceedings. He retained attorney Jeff Griffiths of the Ganjoo Law Office to represent him.

Salazar–Gonzalez conceded removability and applied for cancellation of removal. In his application, he presented evidence of his employment history plus his considerable family and community ties in the United States. At the same time, Salazar–Gonzalez began pursuing an I–130 visa, which is a petition for an alien relative that was filed by his wife, a United States citizen. Griffiths expressed confidence Salazar–Gonzalez would obtain permission to live in the United States through this mechanism, representing in court filings that “[Salazar–Gonzalez] qualifies for consular processing” and that he “wishes to conclude his case as soon as possible and Counsel expects that his I–130 petition will be approved by 11/2009.” When the Immigration Judge (IJ) denied his application for cancellation of removal, Salazar–Gonzalez followed Griffiths's advice: he did not pursue an appeal of the IJ's decision but instead accepted voluntary departure and returned promptly to Mexico to wait for his I–130 visa.

This was bad advice. After some delay, Salazar–Gonzalez received word that his visa application had been denied. In response to an email from Griffiths's law office, consular officials explained that Salazar–Gonzalez was statutorily ineligible to receive an I–130 visa, and that no waiver was available to him. Even more bad news awaited him—Salazar–Gonzalez was informed that he would not be eligible to apply to reenter the United States for ten years.

Salazar–Gonzalez attempted to return nonetheless. (When he voluntarily departed after approximately thirty years in the United States, he left behind his wife, children, and other family members.) After reentering, he was again detained by immigration authorities in early 2011. Represented by new counsel, he filed a motion to reopen his prior removal proceedings on the grounds that he had received ineffective assistance of counsel. The IJ and the Board of Immigration Appeals (BIA) both

798 F.3d 920

denied the motion to reopen. Salazar–Gonzalez filed a timely petition for review in this court.

Analysis

This case hinges on the legal question of whether it is a reasonable tactical choice for a lawyer to advise an alien to forfeit his right of appeal to the BIA and leave the United States in order to apply for a visa for which he is statutorily ineligible. As the Supreme Court recently confirmed in Mata v. Lynch, ––– U.S. ––––, 135 S.Ct. 2150, 2153–54, 192 L.Ed.2d 225 (2015), we have jurisdiction to review an untimely motion to reopen under 8 U.S.C. § 1252(a). We grant the petition because the BIA abused its discretion by characterizing a lawyer's patently erroneous and legally dead wrong advice as a reasonable “tactical decision[ ].” See Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir.2008) (stating that we review for abuse of discretion the BIA's denial of a motion to reopen).

Salazar–Gonzalez acknowledges that his motion to reopen removal proceedings was untimely, as the regulations provide that the motion must be filed within ninety days after a final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, this deadline is subject to equitable tolling. In Singh v. Holder, 658 F.3d 879 (9th Cir.2011), we succinctly explained the requirements for equitable tolling due to ineffective assistance of counsel. The petitioner must demonstrate: “(a) that he was prevented from timely filing his motion due to prior counsel's ineffectiveness; (b) that he demonstrated due diligence in discovering counsel's fraud or error; and (c) that he complied with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).” Id. at 884.2 Having met these procedural requirements, the alien must show that his “counsel's performance was deficient, and [that he] suffered prejudice” as a result. Id. at 885.

Here, the BIA held that Salazar–Gonzalez had “complied with the basic procedural requirements” necessary to obtain equitable tolling for his motion to reopen. It concluded, however, that he was not entitled to tolling because he...

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10 practice notes
  • Flores v. Barr, No. 15-73461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Julio 2019
    ...Flores. But the 90-day deadline is subject to "equitable tolling due to ineffective assistance of counsel." Salazar-Gonzalez v. Lynch , 798 F.3d 917, 920 (9th Cir. 2015). For equitable tolling to apply, the petitioner must show "(a) that he was prevented from timely filing his motion due to......
  • Agonafer v. Sessions, No. 13-73122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Junio 2017
    ...to reopen a removal proceeding." Mata v. Lynch , ––– U.S. ––––, 135 S.Ct. 2150, 2154, 192 L.Ed.2d 225 (2015) ; Salazar–Gonzalez v. Lynch , 798 F.3d 917, 920 (9th Cir. 2015) ; see also 8 U.S.C. § 1252(b)(6) ("[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be ......
  • Santiago-Barrales v. Garland, 17-70314
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 21 Marzo 2022
    ...Cir. 2004). Santiago-Barrales's prior counsel filed an appeal with the BIA, so we do not presume prejudice. See Salazar-Gonzalez v. Lynch, 798 F.3d 917, 921 (9th Cir. 2015). Even with the assistance of competent counsel, Santiago-Barrales cannot show that he satisfies the "particular social......
  • Silva v. Sessions, No. 11-73257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Junio 2017
    ...Page 3must show that his counsel's performance was deficient, and that he suffered prejudice as a result. See Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015). It is undisputed that Silva's motion to reopen was untimely. Silva moved to reopen her January 31, 1994 order of deport......
  • Request a trial to view additional results
10 cases
  • Flores v. Barr, No. 15-73461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Julio 2019
    ...Flores. But the 90-day deadline is subject to "equitable tolling due to ineffective assistance of counsel." Salazar-Gonzalez v. Lynch , 798 F.3d 917, 920 (9th Cir. 2015). For equitable tolling to apply, the petitioner must show "(a) that he was prevented from timely filing his motion due to......
  • Agonafer v. Sessions, No. 13-73122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Junio 2017
    ...to reopen a removal proceeding." Mata v. Lynch , ––– U.S. ––––, 135 S.Ct. 2150, 2154, 192 L.Ed.2d 225 (2015) ; Salazar–Gonzalez v. Lynch , 798 F.3d 917, 920 (9th Cir. 2015) ; see also 8 U.S.C. § 1252(b)(6) ("[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be ......
  • Santiago-Barrales v. Garland, 17-70314
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 21 Marzo 2022
    ...Cir. 2004). Santiago-Barrales's prior counsel filed an appeal with the BIA, so we do not presume prejudice. See Salazar-Gonzalez v. Lynch, 798 F.3d 917, 921 (9th Cir. 2015). Even with the assistance of competent counsel, Santiago-Barrales cannot show that he satisfies the "particular social......
  • Silva v. Sessions, No. 11-73257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Junio 2017
    ...Page 3must show that his counsel's performance was deficient, and that he suffered prejudice as a result. See Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015). It is undisputed that Silva's motion to reopen was untimely. Silva moved to reopen her January 31, 1994 order of deport......
  • Request a trial to view additional results

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