CA Court of Appeals Reverses Denial of Motion to Vacate

The CA Court of Appeal has reversed the denial of a motion to vacate where defense counsel testified that she advised the defendant he would lose his residency status and the defendant signed a plea form advising him that he must expect his conviction would result in deportation, exclusion from admission, and denial of naturalization. The court noted that the defendant sent a letter requesting to withdraw his plea before sentencing, noting his fears that he could be deported. Even though he repeatedly told the judge he wanted to withdraw his plea if he was going to be deported, the judge denied his request.

Four years later, the defendant filed a motion to vacate under Penal Code 1473.7. He indicated that he had difficulty reading the plea because of cataracts, that his whole life was in the United States, and that the last time he was in Mexico, he was assaulted by the police due to his bisexuality. Although the DA agreed to allow the defendant to withdraw his plea and re-plead to a misdemeanor, the judge refused to abide by the agreement.

The court reasoned that defense counsel’s advisals were insufficient. Despite her testimony, her notes indicated that she had advised the client his immigration status would change and he would have an immigration hearing. Nonetheless, the immigration consequences of an aggravated felony (mandatory deportation) were crystal clear at the time of plea. “Counsel did not explain that Manzanilla faced mandatory deportation. Counsel’s advice was deficient for lack of specificity despite clear law establishing that Manzanilla’s removal was virtually certain.” Such advice is constitutionally deficient.

The court noted that the plea form, which described the immigration consequences in mandatory terms, did not cure this inadequate advisal. Even with the word “will,” the plea form is simply a generic advisement, not designed to substitute for accurate advice from counsel. The court noted that there was evidence other than the defendant’s testimony regarding counsel’s advice - namely, counsel’s notes and testimony.

The court found that defense counsel also failed to creatively plea bargain. “It is undisputed that counsel failed to make a counteroffer of 364 days in custody, which was more likely to be accepted by the prosecution than the more significant sentence reductions she sought of six or nine months.” “Moreover, counsel does not remember raising Manzanilla’s immigration status in plea bargaining, and her notes confirm this. Her notes and memory also confirm that she learned Manzanilla was a legal permanent resident only when they discussed the consequences of the plea, after he stated he would take it, and after her counteroffers. This suggests that counsel failed to bargain creatively with the prosecution in a manner that considered immigration consequences.”

The court further noted that the defendant was not required to affirmatively show the prosecution would have accepted 364 days. “Here, there is an indication the prosecution would reasonably accept a plea of 364 days because the prosecution’s opening offer was 365 days. The People offer no explanation as to why the prosecution would have not found a one-day reduction reasonable.”

The court determined that there was evidence the defendant did not understand the consequences of his plea. For example, he told his defense counsel it was “ok” if he was required to attend an immigration court hearing, so long as the hearing was in the United States. This statement shows that he did not understand the nature of an immigration process, which is designed to establish a non-citizen’s deportability. “If Manzanilla knew he was subject to mandatory deportation to Mexico, then his concern about the location of his immigration hearing seems irrelevant.”

The court also noted the swiftness with which the defendant brought his concerns about immigration to the attention of the criminal court. “He did not wait months or years to claim he did not realize he would be deported. He did not wait to claim he did not understand the consequences only after efforts to avoid deportation proceedings had failed. He was not making a desperate allegation to avoid the consequences of an immigration proceeding that had gone unexpectedly bad. Manzanilla advised the court at the first court hearing after entry of the plea, 21 days later, with no deportation proceeding underway, that he had not understood that deportation was a certainty.”

The full text of People v. Manzanilla can be found here:

http://sos.metnews.com/sos.cgi?0722//B313557

Third Circuit Finds Ineffective Assistance of Counsel for Failure to Submit Corroborating Documents

The Third Circuit has determined that an attorney provided ineffective assistance of counsel by failing to present corroborating documentation of the existence of the applicant’s political party. Notably, the attorney had submitted a written denial of the allegations of wrongdoing. The court noted that “we have recognized that a lawyer cannot be expected to argue his own ineffective assistance.”

The court also criticized the Board’s determination that the assassination of the Haitian president was merely an incremental increase in political violence. “It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country’s leader is simply an ‘incremental increase’ in unrest.”

The full text of Saint Ford v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

Ninth Circuit Rejects Ineffective Assistance of Counsel Claim

The Ninth Circuit has rejected a claim that a petitioner’s two prior attorneys committed ineffective assistance of counsel by failing to file untimely motions to reopen for him at an earlier date. “Under the circumstances of this case, we thus cannot conclude that to avoid engaging in ‘egregious conduct that threatens the fairness of the proceedings,’ petitioner’s prior lawyers were required to file untimely motions to reopen with no apparent prospect for avoiding the time bar.”

The full text of Hernandez-Ortiz v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/26/16-72752.pdf

BIA Vitiates "Self-Lozada" Procedure

The Board of Immigration Appeals has determined that when an attorney admits that they rendered ineffective assistance of counsel, their client is not excused from filing a bar complaint, when the same attorney is trying to reopen the proceedings based on their admitted ineffective assistance. In addition, the Board has determined that the respondent must show that that, but for counsel’s error, he would have prevailed on his claim, in order to establish the required prejudice for an ineffective assistance of counsel finding.

The full text of Matter of Melgar can be found here:

justice.gov/eoir/page/file/1342986/download

Ninth Circuit Affirms No Prejudice Requirement for IAC MTR Where In Absentia Issued

The Ninth Circuit has affirmed that a petitioner seeking reopening based on ineffective assistance of counsel need not establish prejudice when the ineffective assistance resulted in the entry of an in absentia removal order.

The full text of Sanchez Morales v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/18-70666.pdf

Eleventh Circuit Denies IAC Claim

The Eleventh Circuit has held that the filing of a bar complaint is not sufficient to demonstrate that prior counsel was notified of the allegations against him and given an opportunity to respond because not all bar complaints lead to a notice being sent to the attorney. In addition, the filing of a bar complaint is a separate requirement under Matter of Lozada from notice to the attorney, and permitting the bar complaint to serve as notice would eviscerate the separate requirement of a bar complaint.

The full text of Point Du Jour v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201815235.pdf

Third Circuit Confirms that Petitioner has Constitutional Right to Effective Counsel when Seeking Discretionary Relief

The Third Circuit has confirmed that a petitioner seeking cancellation of removal (a discretionary form of relief) still has a Fifth Amendment right to due process, including effective assistance of counsel. Thus, even an applicant for discretionary relief may assert an ineffective assistance of counsel claim, which is reviewable by the federal appellate court.

The full text of Calderon-Rojas v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/192332p.pdf

Seventh Circuit Finds IAC for Failure to Advise about U Visa Eligibility

The Seventh Circuit has determined that an attorney provided ineffective assistance of counsel by failing to advise a client about his eligibility for a U visa. “The Board should not have faulted Alvarez-Espino for failing to provide his initial counsel with information significant to a potential U visa application. The Board’s reasoning is backwards: it is up to counsel, not the client, to ask the right questions and to solicit information pertinent to potential legal grounds to prevent removal. To place the burden on Alvarez-Espino as the Board did is to require him to have a nuanced understanding of American immigration law. That expectation defies reality.”

However, the court found that the petitioner was not prejudiced by the ineffective assistance, because he did eventually file his U visa, and the application will continue to process while he is outside of the country.

The full text of Alvarez-Espino v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-06/C:19-2289:J:Scudder:aut:T:fnOp:N:2483918:S:0

Eleventh Circuit Remands Asylum Claim Based on Ineffective Assistance of Counsel

The Eleventh Circuit has remanded an asylum claim, where the trial counsel acted deficiently by not (1) communicating with the petitioner about the substance of his case; (2) allowing the petitioner to review the evidence despite his repeated requests; and/or (3) adequately preparing for the merits hearing.

“The BIA reasoned that Gurian’s performance was not deficient because he reasonably relied on evidence that Sow was directly involved in gathering. But Sow was not involved in gathering evidence. Because Sow was detained, his involvement was limited to reviewing evidence that Ibrahim, Diallo, and Gurian collected on his behalf. Sow repeatedly sought to review and correct the mounting evidence. But his efforts were unsuccessful, as Gurian refused to allow Sow access. When Sow finally had the opportunity to review some of the evidence, he attempted to communicate his concerns to Gurian. But Gurian either did not listen, or could not understand Sow, no doubt due to the language barrier and lack of an interpreter. In fact, Gurian failed to obtain an interpreter for any of their meetings or phone conversations, a sanctionable offense. As a result, Sow was unable to communicate with his counsel about the substance of his case.”

“Gurian also failed to familiarize himself with the case. For example, during the merits hearing, Gurian was unaware of basic facts like how many asylum applications Sow had submitted and how many individuals named Djibril Barry were involved in the case. And because of Gurian’s failure to review the evidence, he submitted contradictory affidavits. The evidence was not only internally inconsistent—he submitted multiple, contradictory affidavits prepared by Djibril Barry—but it was also inconsistent with his own client’s account.”

“Because the IJ explicitly said that he would have granted Sow’s application but for the evidentiary inconsistencies, we have no trouble concluding that there is a reasonable probability that the outcome of Sow’s merits hearing would have been different with adequate assistance of counsel.”

The full text of Sow v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201715245.pdf

Sixth Circuit Addresses Prejudice Standard for IAC

The Sixth Circuit has emphasized that a petitioner need only show a reasonable probability that but-for his counsel’s substandard conduct, he would have received a different outcome in his removal proceedings. The Board of Immigration Appeals (Board) “required that Kada prove prejudice by showing that his claims necessarily would have succeeded or that he has actually been tortured rather than asking whether he demonstrated a reasonable probability that, but for his counsel’s ineffective assistance, he would have been entitled to remain in the United States. And it failed to treat Kada as it has similarly-situated individuals. As a result, the Board abused its discretion by denying Kada’s motion to reopen.”

The full text of Kada v. Barr can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0014p-06.pdf

First Circuit Applies Lozada Requirements to Direct Appeal

The First Circuit has determined that the procedural requirements for an ineffective assistance of counsel claim outlined in Matter of Lozada apply to a claim of ineffective assistance of counsel made on direct appeal, as well as to ineffective assistance of counsel claims made in motions to reopen.

The full text of Ferreira v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-2211P-01A.pdf

Ninth Circuit Finds that BIA Applied Wrong Legal Standard to MTR

The Ninth Circuit has determined that the Board of Immigration Appeals (Board) applied the wrong legal standard to a motion to reopen when it determined that the movant established only a possibility, rather than a probability, of future torture. The Ninth Circuit held that a movant need only show prima facie eligibility for relief in a motion to reopen. Thus, in the context of a motion to reopen based on ineffective assistance of counsel, the movant need only show that his counsel’s deficient performance may have affected the outcome of the proceedings. Similarly, in the context of a request for reopening to pursue a 212(c) waiver, the Board’s conclusion at the motion to reopen stage that the new hardship evidence would not impact the outcome in the case was too stringent of a standard for reopening.

The full text of Flores v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/18/15-73461.pdf

CA Court of Appeals Addresses IAC Regarding Immigration Consequences

The California Court of Appeals, Fourth Appellate District, has determined that a counsel who failed to advise her client before she entered her guilty plea that her plea would subject her to mandatory deportation has rendered ineffective assistance of counsel. An executed Tahl waiver form, advising the defendant she will be deported, does not substitute for the specific and correct advice of counsel regarding clear immigration consequences.

Moreover, where the record contains objective evidence (such as family ties, long-time lawful permanent residence, and an employment history in the United States) that the defendant would not have entered her guilty plea had she been so advised, prejudice is established. A defendant’s willingness to spend months in immigration detention fighting a case is further proof of her unwillingness to agree to a plea that would make her automatically deportable.

The full text of In re Reyna Perez Hernandez can be found here:

http://sos.metnews.com/sos.cgi?0319//G054623

CA Appellate Court Applies De Novo Review to Denial of 1473.7 Motion

The Court of Appeal for the State of California, Fifth Appellate District, has held that a denial of a 1473.7 motion to vacate is subject to de novo review. The court noted that the trial court, in giving the required 1016.5 advisements, told the defendant he would suffer immigration consequences, not that he might suffer them. “After being specifically advised by the trial court his plea would lead to his deportation and denial of readmission to the United States, Tapia did not request more time to speak with counsel or further consider the appropriateness of entering a plea. Instead, when asked by the trial court if he understood, Tapia affirmatively stated he understood this advisement from the trial court.”

In addition, his criminal defense attorney stated in his declaration he specifically advised Tapia the negotiated disposition “exposed him to deportation proceedings and other negative consequences. These would include loss of permanent resident status, preclusion from citizenship and prevention of reentry, as this was my custom and practice in situations similar to … Tapia’s.” He further stated that he advised Tapia that immigration officials “could put a hold on him any day, and although he still faced deportation out of custody, the chances of such proceedings decreased when not in jail.” “Therefore, we uphold the trial court’s finding Tapia was advised of the specific immigration consequences of his plea and the effect the plea would have on his legal resident status. “

“Tapia also contends Collins rendered deficient representation by failing to negotiate an ‘immigration safe’ plea bargain. Tapia’s claim such a disposition could have been negotiated is pure speculation without support in the record.” “Collins also believed he advised Tapia immigration might put a hold on him any day, and the sooner Tapia was released from custody, the less likely it was he would face deportation proceedings. The probation report confirms there were no holds on Tapia at the time of entry of the plea precluding a release from custody. As such, the plea bargain allowing for a quick release from custody to avoid any immigration holds also provided a better resolution for immigration purposes.”

The full text in People v. Tapia can be found here:

http://sos.metnews.com/sos.cgi?0918//F075475

CA Appeals Court Rejects IAC Claim

A California appellate court has found that trial counsel fulfilled his duty to advise the defendant of the immigration consequences of his conviction by providing a boilerplate advisal that mirrors the advisals in section 1016.5 of the California Penal Code.  In addition, the court found that the defendant could not prevail on his argument that counsel failed to negotiate an immigration-neutral disposition because he did not, in his moving papers, identify any immigration-neutral disposition.

The full text of People v. Olvera can be found here:

http://www.courts.ca.gov/opinions/documents/B281767.PDF

Seventh Circuit Addresses Prejudice Standard for Ineffective Assistance of Counsel

The Seventh Circuit reversed the denial of a motion to reopen based on ineffective assistance of counsel.  The BIA indicated that the evidence presented in support of the IAC claim was not likely to have changed the outcome of the case.  The Seventh Circuit that the BIA erroneously applied a standard of probability, rather than possibility.  "The Board’s 'would likely have altered the outcome' language suggests that it was requiring Sanchez to show it was more likely than not (i.e., a probability of more than 50 percent) that the outcome of the removal proceeding would have been favorable to Sanchez but for his counsel’s alleged missteps. But in actuality, Sanchez needed only to establish that he would have had a reasonable chance of prevailing had his counsel provided him with competent representation."  

The full text of Sanchez v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0

Fifth Circuit Discusses Standard of Review for IAC and Equitable Tolling

The Fifth Circuit has determined that a request for equitable tolling, insofar as it is related to a claim of ineffective assistance of counsel, is a question of law over which it has jurisdiction even if a petitioner has been convicted of a controlled substance violation.  The Court noted that "[w]e assume that a valid claim of IAC would constitute an 'extraordinary circumstance [that] stood in his way and prevented timely filing.'”  

The full text of Diaz v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60230-CV0.pdf

Sixth Circuit Determines that the Possibility of Jury Nullification does not Establish Prejudice for Post-Conviction Motion

In order to vacate a plea based on ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that he was prejudiced by this deficiency.  This latter requirement is objective, not subjective, and thus, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.  It is difficult for a petitioner to make this showing if the evidence of his guilt was overwhelming, even if he states that he would have preferred to go to trial (no matter how small the odds of success) to try to avoid the immigration consequences that would certainly accompany the offered plea.  

The court affirmed its prior holding that "no rational defendant charged with a deportable offense and facing 'overwhelming evidence' of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence."  The possibility of jury nullification cannot be considered when determining if a rational defendant would have rejected the plea.

The full text of Lee v. United States can be found here: 

http://www.ca6.uscourts.gov/opinions.pdf/16a0135p-06.pdf

Ninth Circuit Finds that Attorney Provided Ineffective Assistance of Counsel

The petitioner's prior attorney had advised him to waive appeal of the Immigration Court's denial of his cancellation of removal application, and instead, pursue consular processing based on his marriage to a U.S. citizen.  The problem with this proposed course of action is that the petitioner was subject to the so-called "permanent bar" to admissibility under section 212(a)(9)(C) of the Immigration and Nationality Act.  Thus, he was not eligible to obtain his residency through consular processing.  The Ninth Circuit determined that this advice constituted substandard conduct by the prior attorney, and that the forfeiture of appeals rights prejudiced the petitioner's case.  Thus, the court determined that the petitioner's motion to reopen based on ineffective assistance of counsel was improperly denied.

The full text of Salazar-Gonzalez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/20/11-73600.pdf

Seventh Circuit Finds that a Lawyer Provided Ineffective Assistance

Ashraf Habib was accused of gaining his lawful permanent residency through fraud.  Specifically, the Government alleged that Habib gained his residency through marriage to a US citizen, but that at the time, he was still married to a woman in Pakistan.  Habib failed to disclose his Pakistani wife or three children  on his application for residency or for his application for citizenship.  At trial, Habib's attorney denied the Government's allegation that Habib’s marriage to his deceased U.S. citizens spouse was not legally valid because not divorced from his wife in Pakistan.  His attorney, however, seemingly contradicted himself by admitting the materially identical allegation that Habib was not validly married to a United States citizen when he gained his residency.  His attorney also admitted that Habib had three children in Pakistan, but denied that Habib was removable for having committed fraud.

At the beginning of Habib's merits hearing, his attorney submitted a divorce decree which purported to show that Habib had divorced his Pakistani wife 2 years before marrying his American wife.  The attorney stated that he “believed” he previously had submitted a copy of this divorce decree to the government.  But when the government’s attorney disputed this assertion, the attorney said that he “just got it recently.”  The Immigration Judge (IJ) stated that Habib could be questioned about the divorce decree during his testimony but reserved ruling on the admissibility of the document.

Habib then testified about his marriage to his deceased U.S. citizen spouse and the reason he omitted his Pakistani wife and children from his immigration applications.  When asked about his divorce, Habib testified that he was divorced from his first wife in 1999, but the Government asserted that this was contradicted by his attorney's admission to the factual allegation about his invalid second marriage.  "In response, Habib’s lawyer mumbled something about a 'mistake' but did not move to retract the admission of [the] allegation."  

The IJ determined that Habib’s failure to disclose his children and his first marriage was material because the misrepresentation “cut off [a] line of inquiry and prevented the Government from conducting a full analysis of all factors relevant to the validity of” Habib’s second marriage.  The IJ noted that the divorce decree was an untimely submission and emphasized that Habib's attorney initially admitted that his second marriage was invalid and never sought to retract that admission.

Habib retained new counsel, appealed his case to the Board of Immigration Appeals (BIA), and moved to reopen his proceedings on account of ineffective assistance of counsel.  He claimed that he had timely provided the divorce decree to his prior attorney.  His prior attorney did not respond to these allegations, but instead, another attorney at his firm claimed that the document was not timely received by the office.  Habib denied the accuracy of this statement.  The BIA affirmed the IJ's decision and denied Habib's motion to reopen, stating that it could not conclude that Habib's prior attorney's failure to timely submit the divorce decree resulted from “deficient performance” because neither Habib nor his former lawyer specified precisely when Habib gave the divorce decree to his prior attorney.  The BIA also determined that Habib had not shown he was prejudiced by his prior attorney's admission that his second marriage was invalid because the Government submitted substantial evidence challenging the validity of that marriage and Habib had admitted during testimony that he “‘lied on purpose’ when he failed to mention his first wife and his children” in his applications.

The Seventh Circuit disagreed, finding that Habib's prior attorney's admission effectively waived Habib’s defense to removal, and an attorney’s waiver of a complete defense to removal prejudices the client.  In addition, the fact that the Government had put forward evidence that Habib had failed to disclose his first wife and children was no dispositive.  If Habib could prove that his second marriage was valid, he could demonstrate that he was still eligible for residency, despite the omissions in his application.  For this reason, his prior attorney's failure to timely submit the divorce decree was also substandard performance that prejudiced Habib's case.

The full text of Habib v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-29/C:14-3370:J:Williams:aut:T:fnOp:N:1560163:S:0