930 F.3d 1082
9th Cir.2019Background
- Daniel Flores, a lawful permanent resident since 1962, was convicted in 1990 of two felonies under Cal. Penal Code § 288(a) and served a six‑year sentence (three years served). He has lived in the U.S. since childhood and cares for his elderly mother.
- DHS initiated removal proceedings, the IJ found Flores’s § 288(a) conviction constituted both a “crime of violence” and “sexual abuse of a minor,” and denied discretionary relief under former INA § 212(c).
- Flores appealed to the BIA and then to this court; his initial petition for review was dismissed for lack of jurisdiction after his counsel failed to respond to the government’s motion to dismiss.
- Flores later filed an untimely motion to reopen with the BIA alleging ineffective assistance by his prior counsel and seeking to pursue asylum, withholding, CAT deferral, and renewed § 212(c) relief; he submitted new evidence including hardship and country‑conditions declarations and a declaration of fear of torture.
- The BIA found prior counsel deficient under Matter of Lozada but denied the motion because Flores failed to show prejudice: it concluded § 288(a) is an aggravated‑felony sexual‑abuse offense (rendering asylum/withholding unavailable) and that Flores had not shown a clear probability of torture or that new § 212(c) evidence would change the result.
- The Ninth Circuit granted review as to legal questions and grounds independent of the conviction, held the BIA applied too stringent a standard for prejudice as to CAT deferral and § 212(c), remanding those claims, and denied relief as to asylum/withholding and other prejudice claims.
Issues
| Issue | Flores’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Jurisdiction under 8 U.S.C. § 1252(a)(2)(C) | Court may review whether § 288(a) is an aggravated felony and BIA denial to extent it rests on other grounds | § 1252(a)(2)(C) strips review of final orders based on aggravated‑felony removability | Court has jurisdiction over legal question whether § 288(a) is an aggravated felony and over BIA denial to the extent it relied on grounds other than the conviction |
| Standard for showing prejudice in a motion to reopen based on ineffective assistance | Need only show counsel’s deficient performance may have affected outcome by presenting plausible grounds for relief (not prove entitlement) | Prejudice requires showing likelihood of success on the merits (more‑likely‑than‑not or clear probability) | Use the lower “plausible grounds” standard to evaluate prejudice on a motion to reopen; BIA erred where it applied a higher merits standard |
| Whether § 288(a) conviction is an aggravated‑felony “sexual abuse of a minor” that bars asylum/withholding | § 288(a) does not necessarily fit the federal aggravated‑felony definition | § 288(a) categorically constitutes sexual abuse of a minor under Ninth Circuit precedent | Ninth Circuit precedent controls: § 288(a) is an aggravated‑felony “sexual abuse of a minor”; Flores is statutorily ineligible for asylum and (given sentence >5 years) withholding |
| Prejudice with respect to CAT deferral and § 212(c) | New evidence (fear of torture, country conditions, hardship, law‑enforcement letters) plausibly would have affected outcome; merits should be decided at IJ with competent counsel | Evidence did not show torture more likely than not / would not change § 212(c) outcome; no prejudice | BIA abused discretion by adjudicating merits at reopening stage; remand for BIA to apply plausible‑grounds standard and allow opportunity to present claims before IJ for CAT deferral and § 212(c) relief |
Key Cases Cited
- Maravilla Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004) (standard for prejudice on ineffective‑assistance motion to reopen is plausibility, not prima facie entitlement)
- Martinez‑Hernandez v. Holder, 778 F.3d 1086 (9th Cir. 2015) (prejudice requires plausible grounds that counsel’s errors may have affected outcome)
- Farmer v. United States, 627 F.3d 416 (9th Cir. 2010) (California § 288(a) categorically involves sexual abuse of a minor)
- Medina‑Villa v. United States, 567 F.3d 507 (9th Cir. 2009) (same conclusion re: § 288(a))
- Morales Apolinar v. Mukasey, 514 F.3d 893 (9th Cir. 2008) (if plausible prejudice shown, petitioner entitled to opportunity to present case before IJ)
- Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (en banc) (‘‘more‑likely‑than‑not’’ standard governs merits of CAT deferral)
- Lopez‑Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011) (deferral of removal under CAT may be available despite aggravated‑felony conviction)
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (courts generally have jurisdiction to review BIA denials of motions to reopen)