FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDUARDO TORRES-CHAVEZ, 

Petitioner, No. 05-72226

v. Agency No.  A090-543-482 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 10, 2009—San Francisco, California

Filed June 5, 2009

Before: M. Margaret McKeown and Sandra S. Ikuta,

Circuit Judges, and Frederic Block,* District Judge.

Opinion by Judge Ikuta

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation. 

6765
COUNSEL

Steven P. Brazelton, Reno, Nevada, for the petitionerappellant.

Peter D. Kiesler, M. Jocelyn Lopez Wright, Carol Federighi,

Office of Immigration Litigation, United States Department of

Justice, Washington, D.C., for the respondent-appellee.

OPINION

IKUTA, Circuit Judge:

Eduardo Torres-Chavez petitions for review of a final order

of removal under the Immigration and Nationality Act (INA).

He claims that his concession of alienage before the Immigration Judge was the result of legal representation so egregiously deficient that it violated his Fifth Amendment right to

due process. We hold that Torres’s due process rights were

not violated by his lawyer’s performance, and accordingly

deny his petition for review. 

I

Torres entered the United States without authorization in

December 1981, at the age of fifteen. In 1987, Torres sought

to take advantage of the amnesty provisions of the Immigration Reform and Control Act (IRCA), Pub. L. No. 99-603,

§ 201, 100 Stat. 3359, 3394 (1986) (codified as amended at

section 245A of the INA, 8 U.S.C. § 1255a). 

IRCA created a one-year window during which aliens who

unlawfully entered the United States before January 1, 1982

could obtain legal-resident status. See id. §1255a(a)(1)(A). To

obtain temporary residence, an alien was required to apply for

a Form I-688 Temporary Resident Card between May 5, 1987

6768 TORRES-CHAVEZ v. HOLDER
and May 4, 1988. See 8 C.F.R. § 245a.2(a), (j). An alien who

obtained temporary-resident status was then required to file an

application for permanent residence within 43 months in order

to adjust his status to that of a lawful permanent resident. See

8 U.S.C. § 1255a(b)(1)(A), (b)(2)(C).1

“In order to alleviate the concerns of illegal aliens that

information disclosed in their applications would be used as

a basis to prosecute or deport them,” 17 Op. Off. Legal Counsel 172, 173 (1993), section 245A provides a confidentiality

provision, stating that the Attorney General may not “use the

information furnished by the applicant pursuant to an application filed under this section for any purpose other than to

make a determination on the application, for enforcement of

paragraph (6) [prohibiting false statements in applications], or

for the preparation of reports to Congress.” 8 U.S.C.

§ 1255a(c)(5)(A)(i). This confidentiality extends only to “information furnished by an applicant pursuant to the application, or any other information derived from the application,

that is not available from any other source.” Id.

§ 1255a(c)(5)(D)(i).

Torres was issued a Form I-688 Temporary Resident card

on March 4, 1988. Under IRCA, Torres had until September

30, 1991 to file a permanent-residence application. 8 U.S.C.

§ 1255a(b)(1)(A). On August 30, 1993, five years after

receiving his temporary-resident status, Torres went to the

San Francisco office of the (former) Immigration and Naturalization Service to inquire about his permanent-residence

application. He filled out a form entitled “Notice of Appeal of

Decision under Section 210 or 245A of the Immigration and

1Originally, an alien had only 31 months to apply for permanent residence, but this period was retroactively extended an additional 12 months.

See Pub. L. No. 101-649 § 703, 104 Stat. 4978, 5086 (1990); One-Year

Extension of Deadline for Filing Applications for Adjustment From Temporary to Permanent Residence for Legalized Aliens, 56 Fed. Reg. 31060

(Jul. 9, 1991). 

TORRES-CHAVEZ v. HOLDER 6769
Nationality Act,” on which he listed his name, address, and

alien registration number (“A-number”). He also wrote, in

Spanish, that he had hired a lawyer and “thought he had submitted the application but it was not the case.” Torres claims

he never received a response to this inquiry. INS records

reflect that Torres’s permanent-residence application was

denied as untimely on August 18, 1995. 

On March 28, 2003, eight years after his visit to the INS’s

San Francisco office, Torres went to the INS office in Reno,

Nevada. There he submitted a handwritten “INQUIRY/

REQUEST” form, in which he wrote, in English, “I need to

know where my work card is. Can someone please check on

it.” Unlike the “Notice of Appeal of Decision under Section

210 or 245A of the Immigration and Nationality Act” submitted to the INS in 1993, this inquiry did not refer to section

245A or indicate that Torres’s inquiry concerned his application for permanent residence. Upon determining that Torres

was in the country unlawfully, INS agents arrested Torres and

personally served him with a notice to appear (NTA). 

Torres appeared before the IJ on September 24, 2003. He

was represented by an attorney, Steven Brazelton. During that

hearing, Brazelton, on behalf of Torres, admitted the factual

allegations in the NTA (including the fact that Torres was an

alien) and conceded that Torres was removable. Brazelton

then informed the IJ that Torres would be seeking cancellation of removal and requested a continuance to submit the

application. The IJ set an application filing date of January 23,

2004 and a hearing date of February 2, 2004. 

Torres never filed an application for cancellation of

removal. Instead, on December 30, 2003, Torres moved to

withdraw the factual admissions and concession of removability that he had made at the March 28, 2003 hearing, on the

ground that Brazelton had provided ineffective assistance of

counsel. (This motion was filed by Brazelton, who has continued to represent Torres since then, including before this

6770 TORRES-CHAVEZ v. HOLDER
court.) Torres argued that he would never have admitted he

was an alien had Brazelton informed him of his “right to

remain silent” regarding his alienage. Torres also moved to

“suppress all evidence obtained by the government in relation

to [Torres’s] applications for residency under section 245A of

the Immigration and Nationality Act,” based on section

245A’s confidentiality provision covering materials submitted

“pursuant to” a residency application. The IJ denied both

motions on January 15, 2004. Torres then unsuccessfully

attempted to take an interlocutory appeal to the BIA. 

On February 2, 2004, Torres appeared before the IJ. Torres

renewed both motions, and the IJ heard arguments by the parties. Torres testified that he went to the INS office in Reno to

inquire about his “amnesty case.” He refused to answer the

government’s questions regarding his alienage, and again

argued that all documents in the record establishing alienage

were submitted as part of his permanent-residence application

under section 245A of the INA, 8 U.S.C. § 1255a. The IJ

ruled against Torres. Rejecting Torres’s claim that Brazelton

rendered ineffective assistance of counsel when he conceded

Torres’s removability at the September 24th hearing, the IJ

held that, “whether for tactical or strategic reasons, counsel

for the respondent elected to admit and concede” removability

and the factual allegations in the NTA. The IJ also denied

Torres’s renewed motions to suppress his factual admissions

and concession of removability, holding that Torres’s two

inquiries to the INS, as well as the evidence contained in the

NTA, did not “relate” or “pertain[ ]” to a permanent-residence

application under section 245A, and were therefore not covered by that section’s confidentiality provision. Accordingly,

the IJ ordered Torres removed.

The IJ’s order of removal became final on March 21, 2005,

the date on which the BIA affirmed the IJ’s decision. See 8

U.S.C. § 1101(a)(47)(B). Torres timely filed his petition for

review within thirty days, on April 18, 2005, giving us jurisdiction over his petition for review under 8 U.S.C.

TORRES-CHAVEZ v. HOLDER 6771
§ 1252(b)(1). “Questions of law, as well as claims of due process violations, are reviewed de novo.” Hernandez v.

Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008). 

II

On appeal, Torres claims that none of his admissions of

alienage were admissible and that the government therefore

failed to meet its burden of proving that he is an alien. He

argues that his admission of alienage before the IJ should be

suppressed as the product of ineffective assistance of counsel

and that his written and oral admissions to the INS were inadmissible under the confidentiality provision in section 245A.

[1] We begin by considering Torres’s ineffectiveassistance-of-counsel claim. We have explained that “removal

proceedings are civil,” Lara-Torres v. Ashcroft, 383 F.3d 968,

973 (9th Cir. 2004), and that litigants “in removal proceedings

have no Sixth Amendment right to counsel,” Nehad v.

Mukasey, 535 F.3d 962, 967 (9th Cir. 2008). Nevertheless, we

have held that aliens’ counsel can “be so ineffective as to

deprive them of their Fifth Amendment right to due process

of law.” Id. Specifically, we have held that an alien’s right to

due process can be violated by “egregious conduct that threatens the fairness of the proceeding,” including egregiously

deficient performance by the alien’s lawyer. Id. at 971;

accord Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th

Cir. 1986). Therefore, in assessing an attorney’s performance,

“[t]he proper focus of our inquiry is whether the proceeding

is so fundamentally unfair that the alien is prevented from reasonably presenting her case.” Lara-Torres, 383 F.3d at 974

(citation and internal quotation marks omitted). An alien must

also show “substantial prejudice” by demonstrating that “the

alleged violation affected the outcome of the proceedings.” Id.

at 973. 

[2] Although aliens “shoulder a heavier burden of proof” in

establishing ineffective assistance of counsel under the Fifth

6772 TORRES-CHAVEZ v. HOLDER
Amendment than under the Sixth Amendment, MagallanesDamian, 783 F.2d at 933, we may begin our analysis within

the Sixth Amendment framework established by Strickland v.

Washington, 466 U.S. 668 (1984). See, e.g., Hernandez, 524

F.3d at 1017; Matter of Velasquez, 19 I. & N. Dec. 377, 382

(1986). If an attorney’s performance passes muster under Strickland, it cannot render an alien’s proceeding fundamentally

unfair. In other words, there is no violation of the alien’s Fifth

Amendment right to due process if the alien’s counsel was

effective for Sixth Amendment purposes.

[3] Under Strickland, a criminal defendant’s counsel may

be deemed ineffective only if counsel’s performance falls outside “the wide range of reasonable professional assistance.”

466 U.S. at 689. Our “scrutiny of counsel’s performance must

be highly deferential,” and “the defendant must overcome the

presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. (internal

quotation marks omitted). In particular, we must “evaluate the

conduct from counsel’s perspective at the time,” taking care

not to view a lawyer’s decisions in “the distorting effects of

hindsight,” and bearing in mind that defendants are generally

bound by the “strategic” and “tactical” admissions and concessions made by their lawyers. Id. at 689-90. “Because advocacy is an art and not a science, and because the adversary

system requires deference to counsel’s informed decisions,

strategic choices must be respected in these circumstances if

they are based on professional judgment.” Id. at 681. 

Torres claims that Brazelton’s performance was deficient

under Strickland because Brazelton conceded Torres’s alienage and failed to inform Torres about the advantages of

remaining silent. Torres contends that his prior communications with the INS were confidential under section 245A, and

thus the government could not have used any evidence of

alienage contained in those communications at the hearing. At

a minimum, Torres claims, there was a possibility that a

motion to suppress such evidence would have been granted

TORRES-CHAVEZ v. HOLDER 6773
(or eventually would have been successful on appeal to the

BIA or petition for review to this court). If such a motion had

been successful, Torres argues, the government would have

lacked the evidence necessary to carry its burden of proving

that Torres was an alien by “clear, unequivocal, and convincing evidence.” Woodby v. INS, 385 U.S. 276, 286 (1966). Torres’s silence at the hearing would not have availed the

government, because an alien’s refusal to concede alienage

does not itself “establish a prima facie case of alienage, sufficient to shift the burden of proof to the respondent.” Matter

of Guevara, 20 I. & N. Dec. 238, 242 (BIA 1991). Accordingly, Torres argues, there was no strategic or tactical reason

for Brazelton to concede Torres’s alienage before the IJ. Torres also argues that Brazelton’s “failure to advise [Torres] of

his right to remain silent indicates that [Torres’s] pleadings

were neither knowing nor voluntary,” analogizing to withdrawals of guilty pleas under Rule 11 of the Federal Rules of

Criminal Procedure. 

[4] We disagree. Even if we assume that Torres may claim

that Brazelton’s services were ineffective while continuing to

rely on Brazelton’s services to raise that very claim, his argument fails because Brazelton’s representation of Torres did

not fall outside the wide range of reasonable representation.

A lawyer in Brazelton’s position could have reasonably made

the tactical decision to concede his client’s alienage. As noted

above, Torres’s inquiry regarding his “work card” on March

28, 2003 listed Torres’s A-number and his place of birth as

Mexico City, thus providing evidence of Torres’s alienage.

Brazelton had no assurance that he would be able to argue

successfully that this inquiry was subject to section 245A’s

confidentiality provision. To begin with, Torres has not cited,

nor have we found, any case or authoritative agency interpretation directly addressing whether section 245A’s confidentiality provision extends to inquiries that on their face provide

no indication that they are “pursuant to an application” filed

under that section. Moreover, even if section 245A’s confidentiality provision does extend to any inquiry that an alien

6774 TORRES-CHAVEZ v. HOLDER
subjectively intended as a follow-up to a section 245A application, Brazelton had no assurance that the finder of fact

would ultimately conclude that Torres had the necessary

intent. Indeed, as it turned out, the IJ found that Torres’s

March 28, 2003 inquiry did not pertain to an application

under section 245A of the INA. Finally, even though a refusal

to deny alienage, standing alone, is insufficient to meet the

government’s burden of proving alienage, it can still provide

a basis for an “adverse inference” that an alien is “not legally

in this country.” Cabral-Avila v. INS, 589 F.2d 957, 959 (9th

Cir. 1978); accord Matter of Guevara, 20 I. & N. Dec. at 241.

[5] In sum, given the lack of certainty as to whether Torres’s March 28, 2003 inquiry was admissible in the immigration hearing, along with the risks of remaining silent,

Brazelton could have reasonably decided to concede Torres’s

alienage and seek affirmative relief for his client rather than

pursue a motion to suppress. See Knowles v. Mirzayance, 556

U.S. ___, 129 S. Ct. 1411, 1422 (2009) (“Counsel also is not

required to have a tactical reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for success—

for recommending that a weak claim be dropped altogether.”).

Brazelton’s initial approach, as he informed the IJ at the September 24th hearing, was to seek cancellation of removal, and

focusing the court’s attention on a particular basis for relief is

a legitimate reason to concede removability. See RodriguezGonzales v. INS, 640 F.2d 1139, 1142 (9th Cir. 1981). We

cannot say, on the record before us, that Brazelton’s performance was so deficient that it fell outside “the wide range of

reasonable professional assistance” described in Strickland.

466 U.S. at 689.

[6] Because Brazelton’s representation did not constitute

ineffective assistance of counsel under the Sixth Amendment,

it did not deprive Torres of his Fifth Amendment right to due

process of law. Indeed, wholly aside from Strickland and the

Sixth Amendment, Brazelton’s conduct came nowhere close

to constituting the sort of “egregious conduct” that would

TORRES-CHAVEZ v. HOLDER 6775
“threaten[ ] the fairness of the proceeding” and deprive Torres

of his Fifth Amendment right to due process. Nehad, 535 F.3d

at 971. As we have explained, “ineffective assistance of counsel in a deportation hearing 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.” Hernandez, 524 F.3d at 1017;

accord Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003).

Torres was not deprived of any opportunity to be heard, present evidence, or “press [his] case fully.” Lara-Torres, 383

F.3d at 975. Torres simply conceded that he was an alien, a

fact that he has never suggested is untrue. Torres has not

pointed us to any authority for the proposition that voluntarily

conceding a true fact can fundamentally undermine the fairness of a proceeding, nor are we aware of any. To the contrary, the process that Torres was due is “intended to provide

a streamlined determination of eligibility to remain in this

country,” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039

(1984), and that is the process he received. 

III

[7] Because Torres was not deprived of due process by the

conduct of his lawyer, he is bound to his admissions of alienage and removability before the IJ. We therefore need not

address whether Torres’s written and oral admissions to the

INS were admissible in Torres’s removal proceedings under

the confidentiality provision in section 245A, 8 U.S.C.

§ 1255a(c)(5)(A)(i). Torres’s petition for review is DENIED.

6776 TORRES-CHAVEZ v. HOLDER