F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A L F R E D O S A L

A Z A R -G O N Z

A L E Z , AKA Alfredo Salaz ar-Gonz ales, P etitioner
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent

. N o. 11-73600

Ag ency No. A094-965-975

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Submitted Aug ust 20, 2015 * San F rancisco, California

F iled Aug ust 20, 2015

B efore: Sidney

R. Thomas, Chief J udg e and M. Marg aret McKeown and W illiam A. F letcher, Circuit J udg es.

Opinion by

J udg e McKeown

* T h e p an el u n a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).S A L A Z A R -G O N Z A L E Z V

. L Y

N C H 2

SUMMARY * *

Im m igration

The p anel g ranted Alfredo Salaz a r

- G o n za l e z’ s p e t i t ion for review of the B oard of I mmig ration A ppeals’ decision that he

was not entitled to equitable tolling o f his untimely motion to reopen on the basis of ineffective assistance of counsel.

The panel held that a lawy er’s advice to an alien to forfeit his rig ht of appeal to the B I A and leave the Unit e d S t ates to apply for a visa for whi c h h e was statutorily inelig ible was not a reasonable ta ctical decision. The panel held that the B I A a bused its discretion by so c h a racteriz ing counsel’s

? patently erroneous and leg ally dead wrong advice.” Conc l u d ing that petitioner was entitled to equitable tolling because he d emonstrated that h i s counsel performed deficiently and he was prejudiced, the panel r em anded with instructions to g rant reopening

.

COUNSEL

Caroly n Chapma n , L aw Office of Caroly n Chapman, San Dieg o, California, for Petitioner.

Stefanie A. Svoren-J ay , Trial Attorney
, and J o h n S. Hog an, Senior L itig ation Counsel, Office of I mmig ration L itig ation, W a shing ton, D.C.; Stuart F

. Delery

, Acting A s s i stant

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A L A Z A R -G O N Z A L E Z V

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N C H 3

Attorney General, Civil D ivision, United States Department of J ustice, W ashing ton, D.C., for Respondent.

OP INION

McKEOW

N, Circuit J udg e:

Sometimes, it is difficult to disting uish b etween a c lient’s bad luck and a lawy

er’s bad advice. Risk is an inherent part of litig ation, a

nd lawy ers must weig h countless probabilities when advising their clients on what claims to pursue, motions
to file, and arg uments to raise. This case, however, involves

no dy namic assessment of risk: S a l a z ar-Gonz alez ’s lawy er advised him to pursue a form o f i m mig ration relief that Salaz a r-Gonz alez was statutorily inelig ible to r eceive. Steering a client into such a d ead-end is n o t a “ tactical decisio n [ ]
, ” a s the B oard of I mmig rations Appeals p ut it. I t is ineffective assistance of counsel. Althoug h w e h a v e observed that “ [ a] lawy er is often the only person who could thread the laby

r inth” of the immig ration law s, Castro-O’Ryan

v. I.N.S.
, 847 F .2d 1307, 1312 (9th Cir. 1988), tha t observation breaks down when the lawy er does not know the
way

. W e g rant the petition a n d re m a n d with instructions to g rant the motion to reopen.

B A C K G R O U N D

Alfredo Salaz a

r- G o n z a lez 1 is a native and citiz en o f M e x i co

. He came to the United States when he was two
y ears o ld, and his wife and two children are all United States

1 Vario u s p o rt i o n s o f th e reco rd ref er to p etitio n er’ s last n am e as

“ S alazar,” “ Salazar- Go n zalez” an d “ Salazar- G o n zales.”S A L A Z A R -G O N Z A L E Z V

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N C H 4

citiz ens. H is parents also reside in the United States as lawful permanent residents.

Salaz a r-Gonz alez was p resent in the United States illeg ally in 2008 when he was deta i n e d by immig r ation authorities. He was charg ed with removability and placed in removal proceeding s. He retained attorney J eff G r i f fiths o f the Ganjoo L aw Office to represent him.

Salaz a r-Gonz alez c onceded removability and applied for cancellation of removal. I n h is application, h e p r esented evidence of h is em p l o y

m ent history plus his considerable family and community ties in the United States. At the same time, Salaz ar-Gonz alez beg an pursuing a n I -130 visa, which is a petition for an alien relative that was filed by his w ife, a United States citiz en. Griffiths ex pressed c o n f i d e n c e Salaz arGonz a lez would obtain permission to live in the United States throug h this mechanism, representing in c o u r t f iling s that “[ Salaz ar-Gonz alez ] qualifies for consu lar processing ” a nd that h e “wishes to conclude h is c a se as so on a s possible a nd Counsel ex pects that h is I -130 petit i o n w ill be approved b y 11/2009.” When the I mmig ration J u d g e (I J ) denied his application for c ancellation of removal, S a l az ar-Gonz alez followed G riffiths’s advice: he did not pursue an appeal of the I J ’s decision but instead accepte d v o l untary d eparture a nd returned promptly to Mex ico to wait for his I -130 visa.

This was bad advice. After some delay

, Salaz ar-Gonz alez received word that his visa application had b een denied. I n response to an email from Gr i f f iths’s law office, consular officials ex p lained that Salaz ar-Gonz alez was stat utorily ine l i gible to receive an I -130 visa, and that no waiver was available to him. Even more bad news awaitedS A L A Z A R -G O N Z A L E Z V

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N C H 5

him—Salaz ar-Gonz alez was info rm e d that he would not be elig ible to apply to reenter the United States for ten y ears.

S a l a za r

- G o n za l ez attempted to r eturn nonetheless. ( Wh e n he voluntarily departed after approx imately thirty y e ars in the United States, he left b ehind his wife, children, a nd other family members.) After reentering

, he was ag ain detained b y immig ration a

uthorities in early 2011. Represente d b y new counsel, he filed a motion to r e o pen his prior removal proceedings on the g rounds that h e had received ineffective assista n c e of counsel. The I J a nd the B oard o f I mmig r ation Appeals (B I A ) both d enied the m o t i o n t o reopen. Salaz arGonz a lez filed a timely

petition for review in this court.

A N A L Y S I S

This case hing es on the leg al questi o n o f w hether it is a

r e a s o n a b le tactical choice for a lawy er to advise an alien to forfeit his rig ht o f appeal to the B I A and leave the United S t a t e s in order to apply for a visa for which he is statutorily inelig ible. As the Supreme Court recently confirmed in Mata

v. Lynch

, 1 35 S. Ct. 2150, 2153–54 (2015), we have jurisdiction to review an untimely motion to reopen under 8 U.S.C. § 1 252(a). W e g rant the p e t i t i o n because the B I A abused its d iscretion by c h aracteriz ing a lawy er’s patently

erroneous and leg ally d ea d w rong advice as a reasonable “tactical decision[ ] .” See Toufighi v. Mukasey

, 538 F .3d 988, 992 (9th C ir. 2008) (stating that we r eview for abuse o f discretion the B I A’s denial of a motion to reopen).

S a laz ar-Gonz alez acknowledg es that his motion t o r e o p e n removal proceeding s was untimely

, as the reg ulations provide that the motion must be filed w ithin ninety day s a fter a final administrative decision. 8 C.F .R. § 1003.2(c)(2). However,S A L A Z A R -G O N Z A L E Z V

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this deadline is subject to equitable t o l l i n g. I n Singh v

. Holder

, 658 F .3d 879 (9th Cir. 2 011), w e succinctly

ex p lained the req u i rements for equitable tolling due to ineffective assistance of counsel. The petitioner must demonstrate: “(a) that he was prevented from timely filing his motion d ue to prior counsel’s ineffectiveness; ( b) t hat he demonstrated due dilig ence in discovering counsel’s fraud o r error; and (c) that he complied w i t h t h e procedural requirements o f M

atter of Lozada

, 19 I

. & N. Dec. 637 (B I A 1988).” Id. at 884. 2 Having met these procedural requirements, the alien must show t h a t his “ counsel’s performance was deficient, and [ that he] suffered prejudice” as a result. Id. at 885.

Here, the B I A held that Salaz ar-Gonz alez had “complied with the basic procedural r equirements” necessary t o obtain equitable tolling for his motion to reope n. I t concluded, however, that he was n ot entitled to tolling because he “ failed
to establish that his prior a ttorney e ng aged in ineffective assistance.” I n the B I A’s view, Griffiths’s recommendation that Salaz ar-Gonz alez return to Mex ico was a “ tactical decision[ ]” that “do[ es] not rise to the level of ineffective assistance of counsel.” This reasoning was in error.

T h e crux of Salaz ar-Gonz alez ’ s arg ument is that hi s lawy er’s bad advice c a

used him to forfeit his rig ht to appeal the I J ’ s denial of his application for cancellation of removal.

2 S t r i ct co m

p lian ce w ith Lo z a d

a is n ot alw ay s n ecessary f o r eq u ita b l e to llin g

. S ee, e.g

. , Lo v. Ash cro

ft

, 3 4 1 F .3 d 9 3 4
, 9 37 (9 th Cir. 20 0 3 ) (“ [W ]e h av e been f

lex ib le in ap p ly in g t

h e Lo za d a req u irem en t s.”); Ca s tillo -Perez

v. I.N.S

. , 2 1 2 F.3 d 5 1 8
, 5 2 6 (9 th Cir. 2 0 00 ) (g ran tin g p etitio n d e sp i te p etitio n er’ s f

ailu r e t o co m

p ly w ith “ f

orm al req u irem en ts o f Ma tter o f Lo za d a ”).S A L A Z A R -G O N Z A L E Z V

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N C H 7

The record amply supports this claim. I n c o u r t filing s, Griffiths ex pressed c ertainty that Salaz ar-Gonz alez would

soon receive an I -130 visa. I n fact, Griffiths was so confident that he moved to ex pedite the cancellation of removal h earing so Salaz ar-Gonz alez could return to Mex ico to complete the I -130 application process.

Salaz a r-Gonz alez was not, however, elig ible f o r such relie f

. The I mmig r ation and National Act (I NA) bars individuals who have been in the United States unlawfully for

more than one y ear from obtaining an I -130 visa for a period of ten y ears. 8 U.S.C. § 1182(a)(9)(B )(i)(I I ) (“[ An alien who] has been unlawfully present in the United States for one y e ar

or more, and who ag ain seeks admi s s i o n w ithin 10 y e ars o f the date of such alien’s departure or removal from the United States, is inadmissible.”). This prohibit i o n is, however, subject to waiver by the Attorney General for the spouses a nd children of U.S. citiz ens or permanent r e sidents. Id. § 1182(a)(9)(B )(v). Given that Salaz ar-Gonz alez ’s wife a nd children were U.S. citiz ens and his p arents wer e l a w f ul permanent r esidents, a waiver seemed p o t entially within his
g rasp.

W h at Griffiths apparently overlooked is that the very nex t subsection of the I

NA—28 U.S.C. § 1182(a)(9)(C)—imposes

an ad d i t i o n al b ar to relief. That provision provides that an individual who spends more than one y e ar u n lawfully in the United States and then “enters or attempts to r e e n t e r the United States without being admitted” is inadmissible and not elig ible for a waiver. Id. § 1182(a)(9)(C)(i). H erein lies the problem: after living in the United States illeg ally f or over a decade, Salaz ar-Gonz alez returned to Mex ico in 2 0 03 for a funeral. His return to the United States later that y e ar constituted entering the United States without being admittedS A L A Z A R -G O N Z A L E Z V

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N C H 8

following a y ear of unlawful presence. A s consular officials in Mex i co determined, § 1182(a)(9)(C) thus p rohibited
g ranting him a waiver of inadmissibility

. 3

The r ig ht to effective assistance of counsel in immig r ation proceeding s stems f

rom the F ifth Amendment’s g uarantee o f due process. See Mohammed v. Gonzales

, 400 F .3d 7 8 5, 793 (9th Cir. 2005). As in a crimina l case, a lawy er’s performan c e in an immig ration proceeding is not measured using “specific g

uidelines,” W

iggins v. Smith , 539 U.S. 510, 521 ( 20 03), but is instead a contex t-dependent inquiry into whether the attorn e y a c ted with “sufficient competence,” Mohammed

, 4 00 F .3d at 793. And just as a criminal defendant can establish p r ejudice without showing that a competent lawy er definitely would have earned an a cquittal,

see Strickland v. W

ashington

, 466 U.S. 668
, 694 (1984), an alien’s burden is to demonstrate that his lawy e r’s errors “may have affected the outcome of the proceeding s,” M ohammed

, 400 F

. 3d a t 794 & n .11 ( quoting Iturbarria v. I

. N.S.
, 321 F .3d 889, 900 (9th Cir. 2003)).

W e h ave little difficulty c onclu d i n g that Griffiths’s advice constituted d eficient performa n c e

. Wh en Salaz ar-Gonz a lez ’s

r e q u e st for cancellation of removal was denied, he had a chance to o btain r e l i e f t h roug h an appeal to the B I A

. I f he returned to Mex ico, he w as doome d to at least ten y ears o f inadmissibility

. “I t is nig h impossible to im a gi n e h ow a competent attorney would make a conscious decision to pursue a cou r s e l eading to c ertain failure, when faced with several paths to success.” Singh

, 658 F .3d at 886. Griffiths’s

3 B ef o re th e BIA
, th e g o v ern m en t arg u ed th at co n su lar relief w as

“ av ailab le” to S alazar- Go n zalez w h en h e retu rn ed to Mex ico

. It h as sin ce retreated f

ro m th at arg u m en t.S A L A Z A R -G O N Z A L E Z V

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N C H 9

failure to g rasp a

nd advise his client o n the futility of the I

130 course of action constituted ineffective assist a n c e. See Lafler v. Cooper
, 132 S. Ct. 1376, 1384 (2012) (advice based on “incorrect” understanding of the law is ineffective).

Salaz a r-Gonz alez w as prejudiced by h is counsel’s deficient p erforman c e. When a lawy er’s error results in an alien bei n g denied his rig ht to appeal altog ether, we apply a “presumption of prejudice.” Se e R o e v. Flores-Ortega

, 528 U.S. 470, 483 (2000); s e e also Dearinger v. Reno
, 232 F .3d 1042, 1045 (9th Cir. 2 0 0 0) ( apply ing presumption of prejudice because when “an alien is prevented from filing

an appeal in a n immig ration proceeding due to counsel’s
error, the error deprives the a lien of the appellate proceeding entirely ”). The g overnment presented no evidence that would rebut this presumption, and ou r r e v iew of the record demonstrates that Salaz ar-Gonz a le z presented sig nificant evidence in support o f his c ancellation of removal application. Thus he has demonstrated t h a t the outcome o f the proceeding s may have b een d ifferent had he not been the victim of ineffective counsel.

W e are not persuaded by t h e g overnment’s additional
arg uments fo r deny ing the petition. To b eg in, the
g overnment notes that Griffiths d i d not “force[ ]” Salaz arGonz a lez “ to accept voluntary d eparture.” Government B rief
at 23 ( c iting Nehad v

. Mukasey

, 535 F .3d 962 (9th C i r. 2008)). This is true b ut beg s the question. I t is b ey ond cavil that bad advice—not just o utrig ht ex tortion—can constitute ineffective assistance of counsel. The g overnment’s view is also naive—in an area of law that ranks just be h i n d theS A L A Z A R -G O N Z A L E Z V

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N C H 10

federal tax code in complex ity

, 4 it is hardly r a t i o n al to think that someone with a hig h school e ducation wo u l d h a v e the

w h e rewithal to know that he should ig nore and override h i s lawy er’s advice.

The g overnment urg es tha t Salaz ar-Gonz a lez ’s filing s contain “no evidence” of “what representations [G r i f f iths] did

or did n ot make to him.” Not so. Salaz ar-Gonz alez ’s motion
to reopen contained a b r ief filed b y Griffiths asserting that he “qualifies for consular processing ” and that he “ wishes to conclude his case as soon as p ossible and Counsel ex pects that his I

- 130 petition will be approved by 11 / 2 009.” The

recor d also contains a complaint from Salaz ar-Gonz alez alleg ing tha t “ [ G r iffiths] told me to waive my appeal rig hts and return to Mex ico to w ait for my visa.” The B I A credited these statements as satisfy ing Lozada and t h ey also reveal what Griffiths advised Salaz ar-Gonz alez to do.

F inally

, the g overnment asserts that there is n o indication that Salaz ar-Gonz alez had ag reed to represent h i m i n an appeal to the B I A. T hat contention i s b oth misleading a nd nonconsequential. T he record shows that Gr i ff iths’s f irm continued to represent Salaz ar-Gonz alez after the I J rendered his decision; for ex ample, a ttorne y s f rom that office sent emails to consular o fficials o n his behalf. I n any event, the
g ravamen of Salaz ar-Gonz alez ’s claim is that he was duped into fo r go i n g h is appeal by Griffiths’s bad advice about his elig ibility for the I -130 visa. W hether Salaz a r- G o nz alez

4 “ W ith o n ly a sm all d eg ree o f h y p e r b o le, th e im

m ig ratio n law s h av e b een term ed ‘ s eco n d o n ly to th e In tern al Rev en u e Co d e in co m p lex ity .’ ” Ca stro - O’Rya n , 8 4 7 F.2 d at 1 3 1 2 (q u o t in g E. Hu ll, W ith ou t Ju stice

fo r All 1 0 7 (1 98 5 )).S A L A Z A R -G O N Z A L E Z V

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N C H 11

intended to retain Griffiths or any other lawy er to c onduct the appeal is of no import.

W e recog n iz e that there are situations where couns e l ’s

a dvice is leg itimately a matter of judg ment, tactics, o r weig hing probabilities. Thi s s ituation is not of that ilk. T o

cau s e a n alien to c ompletely forfeit the rig h t to appeal because of a totally mistaken view o n the availability o f other relief is an abdication of counsel’s duty

.

C O N C L U S I O N

The B I A concluded that Salaz a r-Gonz alez met all of the procedural r equirements to establish entitlement to equitable tolling

. We conclude h e has met the substantive r equirement of demonstrating that his counsel performed deficie n tly a nd
t h a t h e suffered prejudice as a r esult. Salaz ar-Gonz alez i s entitled to equitable tolling in the filing of his m o t i o n to reopen.

P etition G RANTED and REMANDED.