980 F.3d 716
9th Cir.2020Background
- Petitioners Israel Sanchez Rosales and Maria Antonia Martinez Hernandez Sanchez, Mexican nationals with two U.S. citizen sons (one with developmental disabilities), were ordered removed in absentia on March 26, 2014 after failing to appear at their immigration hearing.
- Petitioners had sought help from a non‑attorney notario, Carlos Lewis, who allegedly advised them not to attend the hearing and prepared immigration paperwork (and may have signed a certificate of service on their appeal filings).
- Petitioners filed a timely first motion to reopen (April 2014) that did not allege Lewis’s advice but instead claimed the court told them the hearing was not on the calendar; the IJ and BIA denied that motion and the subsequent petition for review was dismissed for failure to prosecute.
- After obtaining new counsel, Petitioners filed a second motion to reopen (April 2017) asserting for the first time that Lewis had instructed them not to appear and seeking to rescind the in‑absentia order and reopen for cancellation of removal due to hardship to their sons.
- The BIA denied the second motion on two grounds: (1) the denial of the first motion was legally correct (i.e., prior decision dispositive), and (2) Petitioners failed to show they were prejudiced by ineffective assistance/fraud. Petitioners timely petitioned this court for review.
- The Ninth Circuit granted the petition for review and remanded, holding that (a) the BIA erred by relying solely on the earlier decision that predated disclosure of Lewis’s ineffective assistance, and (b) under Ninth Circuit precedent a showing of prejudice is not required when ineffective assistance leads to an in‑absentia order of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a showing of prejudice is required to rescind an in‑absentia removal order grounded on ineffective assistance of counsel | Petitioners: No prejudice showing required; Ninth Circuit precedent (Lo) and BIA practice excuse prejudice in in‑absentia ineffective assistance cases | Government: Petitioners must show prejudice from counsel’s ineffective assistance per the usual ineffective‑assistance standard | Held: Prejudice is not required in this context; remand for the BIA to evaluate the motion without requiring prejudice (Lo v. Ashcroft controlling) |
| Whether the BIA could deny the second motion by relying on the prior denial of the first motion to reopen | Petitioners: Prior denial predated disclosure of Lewis’s ineffective assistance, so BIA must consider the new ineffective‑assistance argument on its merits | Government: The prior decision was legally correct and dispositive | Held: BIA erred; it cannot rely solely on the earlier decision that did not consider the newly alleged ineffective assistance; remand required |
| Whether the court should reach Petitioners’ request to reopen for cancellation of removal (hardship claim) | Petitioners: If in‑absentia order rescinded, they should be allowed to apply for cancellation based on hardship to their U.S. citizen children | Government: The BIA denied on the merits for failure to show exceptional and extremely unusual hardship | Held: Court did not reach this issue because rescission could render it moot; remanded for BIA to reassess after addressing the rescission claim |
Key Cases Cited
- Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003) (holding the BIA does not normally require a showing of prejudice when motion to rescind in‑absentia removal is grounded on ineffective assistance)
- Monjaraz‑Munoz v. INS, 327 F.3d 892 (9th Cir. 2003) (discussing exceptional circumstances and ineffective assistance in the in‑absentia context)
- Flores v. Barr, 930 F.3d 1082 (9th Cir. 2019) (stating ordinary ineffective‑assistance claims require a showing of prejudice)
- Rojas‑Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (noting prejudice is generally required for ineffective‑assistance claims)
- Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (addressing notario advice leading to in‑absentia removal and requiring prejudice)
- Singh‑Bhathal v. INS, 170 F.3d 943 (9th Cir. 1999) (rejecting non‑lawyer advice as exceptional circumstances to rescind an in‑absentia removal order)