959 F.3d 813
7th Cir.2020Background
- Carlos Alvarez-Espino entered the U.S. unlawfully (1996), lived in Chicago, and supported a family; he was a victim of a 2002 armed robbery and later served ~6 months in custody after a probation violation.
- His first attorney pursued cancellation of removal despite Alvarez-Espino serving >=180 days in prison (a statutory bar to cancellation), leading to lengthy delays and an ultimately unsuccessful cancellation application.
- A later attorney discovered Alvarez-Espino likely qualified for a U nonimmigrant visa (U visa) based on his assistance to police after the robbery, prepared a U visa application, and requested a continuance in immigration court to allow USCIS to process the petition.
- The IJ denied the continuance and later denied other relief; the Board rejected Alvarez-Espino’s ineffective-assistance claim in part because it found no clear evidence he told prior counsel about being a crime victim, and it concluded he showed no prejudice because he could pursue a U visa from Mexico.
- Alvarez-Espino challenged the Notices to Appear for lacking a date/time (invoking Pereira), but the record showed he received supplemental notice and attended, so the Board found no prejudice.
- The Seventh Circuit affirmed denial of the petition for review: it criticized the Board for misplacing the burden on the client but held Alvarez-Espino cannot show prejudice because USCIS can adjudicate the U visa even if he is removed, and mere delay is not prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ/Board abused discretion by denying a continuance to permit USCIS to adjudicate a pending U visa application | Alvarez-Espino: continuance necessary because prior counsel was ineffective and new counsel needed time to complete U visa filing | Govt: no good cause; delays by Alvarez-Espino and he remained able to pursue U visa from abroad | Denied: Board’s discretion not abused; USCIS can adjudicate U visa even if petitioner is removed, so denial not prejudicial |
| Whether Board erred in evaluating ineffective-assistance by faulting Alvarez-Espino for not telling prior counsel about the robbery | Alvarez-Espino: prior counsel failed to ask relevant questions; burden is on counsel to investigate potential relief | Govt: record doesn’t show client informed prior counsel; delays weaken claim | Court: Board misapplied burden by expecting client to volunteer; counsel must exercise professional judgment, but error did not establish prejudice here |
| Whether Alvarez-Espino showed prejudice from counsel’s performance (prejudice prong of Lozada/ineffective assistance) | Alvarez-Espino: delay in filing harmed his prospects; prior counsel’s failures caused the delay | Govt: no prejudice because Alvarez-Espino filed a U visa application and can pursue it from Mexico; mere delay is not prejudicial | Held: No prejudice shown; ability to pursue U visa from abroad forecloses prejudice claim |
| Whether defective Notice to Appear (no date/time) requires termination under Pereira | Alvarez-Espino: NTA was invalid per Pereira; proceedings should terminate absent proper NTA | Govt: rule is claims-processing, not jurisdictional; petitioner must show prejudice and he received supplemental notice | Held: Claim fails for lack of prejudice; petitioner received notice of date/time and attended hearings |
Key Cases Cited
- Giri v. Lynch, 793 F.3d 797 (7th Cir. 2015) (standard for abuse of discretion review)
- Toure v. Barr, 926 F.3d 403 (7th Cir. 2019) (continuance-motion standard)
- Cruz-Martinez v. Sessions, 885 F.3d 460 (7th Cir. 2018) (remand-motion review)
- Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007) (counsel’s duty to evaluate potential relief)
- Sanchez v. Sessions, 894 F.3d 858 (7th Cir. 2018) (prejudice standard for ineffective assistance in immigration context)
- Habib v. Lynch, 787 F.3d 826 (7th Cir. 2015) (example of prejudicial ineffective assistance)
- Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) (concurrent jurisdiction over U-visa waivers between IJ and USCIS)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA date/time requirement and its consequences)
- Vyloha v. Barr, 929 F.3d 812 (7th Cir. 2019) (no prejudice where supplemental notice provided)