Alfredo Salazar-Gonzalez v. Loretta E. Lynch, 798 F.3d 917

Alfredo Salazar-Gonzalez, longtime U.S. resident, was placed in removal proceedings after unlawful presence; he conceded removability and sought cancellation of removal.
His wife (U.S. citizen), children (U.S. citizens), and parents (LPRs) provided family ties supporting cancellation and an I-130 petition.
Counsel Jeff Griffiths advised Salazar-Gonzalez to waive appeal of the IJ denial, accept voluntary departure, and return to Mexico to pursue consular processing (I-130).
Consular officials later informed Griffiths’s office that Salazar-Gonzalez was statutorily ineligible for an I-130 waiver because he had previously reentered without admission after accruing over one year of unlawful presence (INA §1182(a)(9)(C)).
Salazar-Gonzalez returned to the U.S.; under new counsel he moved to reopen based on ineffective assistance of counsel and equitable tolling; the IJ and BIA denied the motion; this petition for review followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s advice to waive appeal and pursue an I-130 for which petitioner was ineligible amounted to ineffective assistance	Griffiths gave patently incorrect legal advice that led Salazar-Gonzalez to forfeit appeal rights; this was deficient performance	Government: counsel’s recommendation was a tactical decision and petitioner voluntarily accepted it, so not ineffective assistance	Court: Counsel’s advice was legally erroneous and not a reasonable tactical choice — deficient performance established
Whether petitioner is entitled to equitable tolling of the 90-day motion-to-reopen deadline due to ineffective assistance	The ineffective assistance prevented timely filing; petitioner met Lozada procedural requirements and acted diligently	Government contended petitioner presented insufficient evidence of counsel’s representations and lacked intent to pursue an appeal	Court: Procedural requirements met; substantive ineffective assistance warrants equitable tolling; motion to reopen timely when tolled
Whether prejudice is shown (i.e., would outcome possibly differ)	Forfeiture of appeal deprives petitioner of appellate review; given evidence supporting cancellation, prejudice presumed	Government offered no evidence to rebut presumption of prejudice	Court: Presumption of prejudice applies when counsel’s error forecloses appeal; government failed to rebut; prejudice established

Castro-O’Ryan v. I.N.S., 847 F.2d 1307 (9th Cir. 1988) (immigration law complexity and counsel’s role)
Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2008) (standard of review for BIA denial of motion to reopen)
Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (equitable tolling elements for ineffective assistance)
Mata v. Lynch, 135 S. Ct. 2150 (2015) (jurisdiction over untimely motions to reopen)
Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (due process right to effective counsel in immigration proceedings)
Roe v. Flores-Ortega, 528 U.S. 470 (2000) (presumption of prejudice when counsel’s errors prevent filing an appeal)
Strickland v. Washington, 466 U.S. 668 (1984) (performance and prejudice framework for ineffective assistance claims)
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (advice based on incorrect understanding of law can be ineffective)