FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFREDO SALAZAR-GONZALEZ,

AKA Alfredo Salazar-Gonzales,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 11-73600

Agency No.

A094-965-975

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 20, 2015*

San Francisco, California

Filed August 20, 2015

Before: Sidney R. Thomas, Chief Judge and M. Margaret

McKeown and William A. Fletcher, Circuit Judges.

Opinion by Judge McKeown

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 SALAZAR-GONZALEZ V. LYNCH

SUMMARY**

Immigration

The panel granted Alfredo Salazar-Gonzalez’s petition for

review of the Board of Immigration Appeals’ decision that he

was not entitled to equitable tolling of his untimely motion to

reopen on the basis of ineffective assistance of counsel. 

The panel held that a lawyer’s advice to an alien to forfeit

his right of appeal to the BIA and leave the United States to

apply for a visa for which he was statutorily ineligible was

not a reasonable tactical decision. The panel held that the

BIA abused its discretion by so characterizing counsel’s

?patently erroneous and legally dead wrong advice.” 

Concluding that petitioner was entitled to equitable tolling

because he demonstrated that his counsel performed

deficiently and he was prejudiced, the panel remanded with

instructions to grant reopening.

COUNSEL

Carolyn Chapman, Law Office of Carolyn Chapman, San

Diego, California, 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

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SALAZAR-GONZALEZ V. LYNCH 3

Attorney General, Civil Division, United States Department

of Justice, Washington, D.C., for Respondent.

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 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-Gonzalez1is 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

1 Various portions of the record refer to petitioner’s last name as

“Salazar,” “Salazar-Gonzalez” and “Salazar-Gonzales.”
4 SALAZAR-GONZALEZ V. LYNCH

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 confidenceSalazarGonzalez 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
SALAZAR-GONZALEZ V. LYNCH 5

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 denied the motion to reopen. SalazarGonzalez 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, 135 S. Ct. 2150, 2153–54 (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,
6 SALAZAR-GONZALEZ V. LYNCH

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 “failed

to establish that his prior attorney engaged in ineffective

assistance.” In the BIA’s view, Griffiths’s recommendation

that Salazar-Gonzalez return to Mexico was a “tactical

decision[]” that “do[es] not rise to the level of ineffective

assistance of counsel.” This reasoning was in error.

The crux of Salazar-Gonzalez’s argument is that his

lawyer’s bad advice caused him to forfeit his right to appeal

the IJ’s denial of his application for cancellation of removal. 

2 Strict compliance with Lozada is not always necessary for equitable

tolling. See, e.g., Lo v. Ashcroft, 341 F.3d 934, 937 (9thCir. 2003) (“[W]e

have been flexible in applying the Lozada requirements.”); Castillo-Perez

v. I.N.S., 212 F.3d 518, 526 (9th Cir. 2000) (granting petition despite

petitioner’s failure to comply with “formal requirements of Matter of

Lozada”).
SALAZAR-GONZALEZ V. LYNCH 7

The record amply supports this claim. In court filings,

Griffiths expressed certainty that Salazar-Gonzalez would

soon receive an I-130 visa. In fact, Griffiths was so confident

that he moved to expedite the cancellation of removal hearing

so Salazar-Gonzalez could return to Mexico to complete the

I-130 application process.

Salazar-Gonzalez was not, however, eligible for such

relief. The Immigration and National Act (INA) bars

individuals who have been in the United States unlawfully for

more than one year from obtaining an I-130 visa for a period

of ten years. 8 U.S.C. § 1182(a)(9)(B)(i)(II) (“[An alien who]

has been unlawfully present in the United States for one year

or more, and who again seeks admission within 10 years of

the date of such alien’s departure or removal from the United

States, is inadmissible.”). This prohibition is, however,

subject to waiver by the Attorney General for the spouses and

children of U.S. citizens or permanent residents. Id.

§ 1182(a)(9)(B)(v). Given that Salazar-Gonzalez’s wife and

children were U.S. citizens and his parents were lawful

permanent residents, a waiver seemed potentially within his

grasp.

What Griffiths apparently overlooked is that the very next

subsection of the INA—28 U.S.C. § 1182(a)(9)(C)—imposes

an additional bar to relief. That provision provides that an

individual who spends more than one year unlawfully in the

United States and then “enters or attempts to reenter the

United States without being admitted” is inadmissible and not

eligible for a waiver. Id. § 1182(a)(9)(C)(i). Herein lies the

problem: after living in the United States illegally for over a

decade, Salazar-Gonzalez returned to Mexico in 2003 for a

funeral. His return to the United States later that year

constituted entering the United States without being admitted
8 SALAZAR-GONZALEZ V. LYNCH

following a year of unlawful presence. As consular officials

in Mexico determined, § 1182(a)(9)(C) thus prohibited

granting him a waiver of inadmissibility.

3

The right to effective assistance of counsel in immigration

proceedings stems from the Fifth Amendment’s guarantee of

due process. See Mohammed v. Gonzales, 400 F.3d 785, 793

(9th Cir. 2005). As in a criminal case, a lawyer’s

performance in an immigration proceeding is not measured

using “specific guidelines,” Wiggins v. Smith, 539 U.S. 510,

521 (2003), but is instead a context-dependent inquiry into

whether the attorney acted with “sufficient competence,” 

Mohammed, 400 F.3d at 793. And just as a criminal

defendant can establish prejudice without showing that a

competent lawyer definitely would have earned an acquittal,

see Strickland v. Washington, 466 U.S. 668, 694 (1984), an

alien’s burden is to demonstrate that his lawyer’s errors “may

have affected the outcome of the proceedings,” Mohammed,

400 F.3d at 794 & n.11 (quoting Iturbarria v. I.N.S., 321 F.3d

889, 900 (9th Cir. 2003)).

We have little difficultyconcluding that Griffiths’s advice

constituted deficient performance. When Salazar-Gonzalez’s

request for cancellation of removal was denied, he had a

chance to obtain relief through an appeal to the BIA. If he

returned to Mexico, he was doomed to at least ten years of

inadmissibility. “It is nigh impossible to imagine how a

competent attorney would make a conscious decision to

pursue a course leading to certain failure, when faced with

several paths to success.” Singh, 658 F.3d at 886. Griffiths’s

3 Before the BIA, the government argued that consular relief was

“available” to Salazar-Gonzalez when he returned to Mexico. It has since

retreated from that argument.
SALAZAR-GONZALEZ V. LYNCH 9

failure to grasp and advise his client on the futility of the I130 course of action constituted ineffective assistance. See

Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (advice based

on “incorrect” understanding of the law is ineffective).

Salazar-Gonzalez was prejudiced by his counsel’s

deficient performance. When a lawyer’s error results in an

alien being denied his right to appeal altogether, we apply a

“presumption of prejudice.” See Roe v. Flores-Ortega,

528 U.S. 470, 483 (2000); see also Dearinger v. Reno,

232 F.3d 1042, 1045 (9th Cir. 2000) (applying presumption

of prejudice because when “an alien is prevented from filing

an appeal in an immigration proceeding due to counsel’s

error, the error deprives the alien of the appellate proceeding

entirely”). The government presented no evidence that would

rebut this presumption, and our review of the record

demonstrates that Salazar-Gonzalez presented significant

evidence in support of his cancellation of removal

application. Thus he has demonstrated that the outcome of

the proceedings may have been different had he not been the

victim of ineffective counsel.

We are not persuaded by the government’s additional

arguments for denying the petition. To begin, the

government notes that Griffiths did not “force[]” SalazarGonzalez “to accept voluntary departure.” Government Brief

at 23 (citing Nehad v. Mukasey, 535 F.3d 962 (9th Cir.

2008)). This is true but begs the question. It is beyond cavil

that bad advice—not just outright extortion—can constitute

ineffective assistance of counsel. The government’s view is

also naive—in an area of law that ranks just behind the
10 SALAZAR-GONZALEZ V. LYNCH

federal tax code in complexity,

4

it is hardly rational to think

that someone with a high school education would have the

wherewithal to know that he should ignore and override his

lawyer’s advice.

The government urges that Salazar-Gonzalez’s filings

contain “no evidence” of “what representations [Griffiths] did

or did not make to him.” Not so. Salazar-Gonzalez’s motion

to reopen contained a brief filed by Griffiths asserting that he

“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.” The

record also contains a complaint from Salazar-Gonzalez

alleging that “[Griffiths] told me to waive my appeal rights

and return to Mexico to wait for my visa.” The BIA credited

these statements as satisfying Lozada and they also reveal

what Griffiths advised Salazar-Gonzalez to do.

Finally, the government asserts that there is no indication

that Salazar-Gonzalez had agreed to represent him in an

appeal to the BIA. That contention is both misleading and

nonconsequential. The record shows that Griffiths’s firm

continued to represent Salazar-Gonzalez after the IJ rendered

his decision; for example, attorneys from that office sent

emails to consular officials on his behalf. In any event, the

gravamen of Salazar-Gonzalez’s claim is that he was duped

into forgoing his appeal by Griffiths’s bad advice about his

eligibility for the I-130 visa. Whether Salazar-Gonzalez

4

“With only a small degree of hyperbole, the immigration laws have

been termed ‘second only to the Internal Revenue Code in complexity.’”

Castro- O’Ryan, 847 F.2d at 1312 (quotingE. Hull, Without Justice for All

107 (1985)).
SALAZAR-GONZALEZ V. LYNCH 11

intended to retain Griffiths or any other lawyer to conduct the

appeal is of no import.

We recognize that there are situations where counsel’s

advice is legitimately a matter of judgment, tactics, or

weighing probabilities. This situation is not of that ilk. To

cause an alien to completely forfeit the right to appeal

because of a totally mistaken view on the availability of other

relief is an abdication of counsel’s duty.

CONCLUSION

The BIA concluded that Salazar-Gonzalez met all of the

procedural requirements to establish entitlement to equitable

tolling. We conclude he has met the substantive requirement

of demonstrating that his counsel performed deficiently and

that he suffered prejudice as a result. Salazar-Gonzalez is

entitled to equitable tolling in the filing of his motion to

reopen.

Petition GRANTED and REMANDED.