913 F.3d 1036
11th Cir.2019Background
- Flores-Panameno, a Salvadoran national, entered the U.S. in Dec. 2014 with her two minor children and was served a Notice to Appear for removal.
- At a March 15, 2016 hearing (no transcript in the record), she signed a Request for Pre-Conclusion Voluntary Departure and a non-coercion declaration; the IJ granted voluntary departure to July 13, 2016.
- Flores-Panameno later filed a motion to reopen, alleging her prior counsel misled her into accepting voluntary departure by telling her she would be immediately deported if she declined and failed to file an asylum application.
- The IJ found counsel ineffective but concluded Flores-Panameno’s acceptance of voluntary departure was knowing and voluntary based on the IJ’s on-the-record advisals (reconstructed in the IJ’s order); the BIA adopted that view and denied reopening for lack of prejudice.
- There is no transcript of the March 15 hearing; an audio recording exists but was not submitted or cited by Flores-Panameno to the BIA.
- The Eleventh Circuit granted the petition for review and remanded for the BIA to clarify the scope of the IJ’s reconstruction because, without the transcript, the court could not fully assess voluntariness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flores-Panameno received ineffective assistance of counsel that caused prejudice by inducing voluntary departure | Counsel misled her at the hearing, saying she would be immediately removed unless she accepted voluntary departure, so she would have sought asylum otherwise | IJ and BIA: IJ followed proper procedure and orally advised her (through a translator) on voluntariness and consequences; she suffered no prejudice | Court: IJ found counsel ineffective but concluded no prejudice; Eleventh Circuit did not disturb the finding of ineffective assistance but remanded to clarify voluntariness record because review hampered by missing transcript |
| Who bears the burden to provide the hearing transcript or audio citations on appeal/motion to reopen | Flores-Panameno: (implicit) sought to rely on IJ’s order without producing transcript | Government/BIA: party challenging voluntariness must produce transcript or cite audio to contest IJ’s reconstruction | Held: Petitioner bore the burden to request/provide transcript or cite audio; failure limits review, so court may rely on IJ’s reconstruction if adequately memorialized |
| Whether the IJ’s recreated record was sufficient to decide voluntariness without the transcript | Flores-Panameno: IJ’s reconstruction may omit critical questions/answers (e.g., open-ended inquiries) that would show coercion | IJ/BIA: IJ’s order memorialized multiple advisals and inquiries ensuring voluntariness | Held: IJ’s recreation may be incomplete; because scope of reconstruction was unclear, remand to BIA required to determine whether IJ’s reconstruction was adequate |
Key Cases Cited
- Ali v. U.S. Att’y Gen., 443 F.3d 804 (11th Cir. 2006) (standard of review of BIA denial of motion to reopen)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) (ineffective assistance claim requires prejudice showing)
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (grounds for denying motions to reopen)
- Gbaya v. U.S. Att’y Gen., 342 F.3d 1219 (11th Cir. 2003) (right to effective assistance of counsel in removal proceedings)
- United States v. Milam, 855 F.2d 739 (11th Cir. 1988) (appellant’s failure to order transcript hampers review but court may rely on written findings)
- United States v. LeSpesa, 956 F.2d 1027 (11th Cir. 1992) (omissions from the record do not require reversal when district court can adequately reconstruct the record)