Rodriguez-Lariz, Guevara-Martinez v. INS: 9th Circuit Overturns BIA Denial of Second Motion to Reopen Due to Ineffective Assistance of Counsel

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

RODRIGUEZ-LARIZ, GUEVARA-MARTINEZ V. INS: 9TH CIRCUIT OVERTURNS BIA DENIAL OF SECOND MOTION TO REOPEN DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

The U.S. Court of Appeals for the Ninth Circuit has overturned a decision of the Board of Immigration Appeals denying a motion to reopen deportation proceedings on the grounds that the motion violated the numerical limitations on such motions. The court found that regulation that generally prohibits more than one motion to reopen did not apply in this case because of the doctrine of equitable tolling. In so concluding, the court found that the respondents established that both their failure to file suspension applications at their deportation hearing and their failure to file an adequate motion to reopen on their first attempt to do so were due to their having been misled by their legal representatives.

The respondents in this case are two Mexican nationals who entered the United States in 1988 and have lived here continuously since then. They are married and have two U.S. citizen children. In an effort to obtain legal status in the United States, they contacted an immigration specialist, Oscar Torres. Torres advised them to apply for asylum and charged them $600 to file an asylum application. That application was denied by the Immigration and Naturalization Service, and in July 1996 the INS initiated deportation proceedings against the respondents.

On the day of their hearing, in September 1996, the respondents met Torres and paid him another $600 to assist them. Torres introduced them to Jorge Cabrera, an attorney who represented them at the hearing. At the hearing Cabrera, on behalf of the respondents, conceded their deportability, withdrew the asylum application, and requested suspension of deportation or, in the alternative, voluntary departure. The immigration judge then adjourned the hearing until Mar. 5, 1997, requiring that the suspension applications be filed by Feb. 15, 1997, and directing that if they were not filed by that date the applications would be considered waived.

According to the respondents, in September 1996 they provided Torres with documents he requested in order to prepare their suspension applications, and he assured them that "everything was fine," that he and the attorney "were handling everything," and that they had "just to wait for the next hearing." In fact, the suspension applications were not filed until Feb. 21, 1997, six days after the deadline that the IJ had set.

At the next hearing on March 5, the respondents met Torres and paid him another $700. Torres then introduced them to another attorney, Stephen Alexander, who represented them at the hearing. At the hearing, the IJ stated that the suspension applications had not been filed and recessed the hearing to allow Alexander to consult the respondents. Alexander advised them that they should agree to voluntary departure, which they did when the hearing resumed. The IJ found that since the respondents had not timely filed the suspension applications, they waived eligibility for that relief.

After the hearing, the respondents met with Torres and Alexander, who assured the respondents that the applications had been filed and that the IJ had lost them. Torres assured them that "an appeal would resolve all the problems" and charged them $350 to file an appeal. A notice of appeal, signed by the male respondent, was timely filed, and subsequently Torres charged the respondents an additional $1,200 to file an appellate brief. The brief contended that the IJ should have considered the suspension applications and the respondents' eligibility for suspension but gave no explanation for the failure to timely file the applications. In November 1998, the BIA dismissed the appeal, noting that the respondents failed to explain, either at the hearing or on appeal, why the suspension applications were not timely filed. The BIA gave the respondents 30 days to voluntarily depart the U.S. The respondents filed a timely motion for reconsideration of this decision, essentially repeating the arguments they had made on appeal. Although the motion was submitted pro se (i.e., on their own behalf and without representation of counsel), according to the respondents the motion was prepared by Torres. The BIA denied the motion in June 2000.

The respondents then found other counsel and filed a timely motion to reopen, contending that they were prevented from timely filing their suspension applications by ineffective assistance of counsel and that exceptional circumstances warranted reopening the case. The BIA denied the motion on the grounds that it was barred by 8 C.F.R. section 3.2(c)(2), which generally bars respondents from filing more than one motion to reopen. The BIA rejected the respondents' argument that this provision should be waived under the doctrine of equitable tolling because of ineffective assistance of counsel. In so ruling, the BIA found that equitable tolling or waiver was not applicable because the respondents should reasonably have discovered the ineffective assistance of counsel before the motion to reopen stage of proceedings. The BIA also refused to reopen the case sua sponte (i.e., on its own motion), stating that the respondents had failed to demonstrate prima facie eligibility for suspension. The respondents through counsel then filed a petition for review of the BIA's decision.

On appeal, the Ninth Circuit reversed. The court found that the facts asserted by the respondents in their second motion, and not disputed by the INS, established ineffective assistance of counsel. The court also found that fraud on the part of the respondents' representatives prevented the respondents from timely filing their suspension applications and led them to waste their one opportunity under the regulations to file a motion to reopen. The court rejected the INS's argument that the respondents failed to use reasonable diligence to discover the ineffective representation, finding that the lies and misrepresentations of the representatives kept the respondents, who were unfamiliar with immigration proceedings, from discovering the extent of the ineffective assistance. The court concluded that the BIA therefore should have considered the second motion.

On the merits of the motion, the court also found that the respondents were denied due process at their hearing because ineffective assistance of counsel prevented them from seeking suspension of deportation. The court rejected the INS's argument that the BIA's denial of the motion to reopen was not an abuse of discretion, because in refusing to reopen the case sua sponte the BIA had stated that the respondents failed to set forth a prima facie case of eligibility for suspension. The court found that this summary conclusion of the BIA was inadequate because the BIA did not "even purport[] to engage in any substantive analysis or articulat[e] any reasons for its decision." The court also found that the BIA had failed to give "careful and individualized consideration to the hardship that respondents' U.S. citizen children would suffer" as a result of deportation. For these reasons, the court reversed and remanded the case for a new hearing on the applications for suspension of deportation.

Rodriguez-Lariz and Guevara-Martinez v. INS, 282 F.3d 1218 (9th Cir. Mar. 13, 2002).