778 F.3d 1086
9th Cir.2015Background
- Javier Martinez-Hernandez entered the U.S. as a child (1984); his lawful permanent-resident mother filed an I-130 in 1997; visa processing delayed and he obtained a visa and admission in 2004 but did not seek adjustment of status within the one-year window under the Child Status Protection Act.
- In 2001 (age 18) he committed a violent offense against a police officer and pleaded guilty in California to felony battery with severe bodily injury and a deadly-weapon enhancement.
- He overstayed his visa and was placed in removal proceedings in 2007; he conceded removability and, through counsel, indicated an intent to seek cancellation of removal and adjustment of status.
- Counsel pursued only adjustment of status; the IJ denied adjustment based on the one-year CSPA bar; Petitioner later claimed counsel was ineffective for failing to seek cancellation of removal.
- The BIA first denied remand for failure to comply with In re Lozada procedural requirements, then (after a proper Lozada showing) denied a motion to reopen on the merits, holding Martinez-Hernandez failed to show a plausible claim of exceptional and extremely unusual hardship for cancellation
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in denying motion to reopen based on ineffective assistance of counsel | Counsel was ineffective for failing to seek cancellation of removal and for pursuing only adjustment of status | Even assuming inadequate performance, Petitioner failed to show prejudice because his cancellation claim was not plausible | Denied—BIA did not abuse discretion; petitioner failed to show threshold plausibility of cancellation claim |
| Whether counsel should have challenged IJ’s statement that felony conviction barred cancellation | Counsel could have contested the conviction’s disqualifying effect to preserve cancellation eligibility | Conviction likely made petitioner ineligible; no convincing argument or evidence presented | BIA reasonably rejected this contention given lack of developed argument/evidence |
| Whether petitioner demonstrated "exceptional and extremely unusual hardship" to qualifying relatives | Petitioner argued hardship to his permanent-resident mother and U.S.-citizen daughter would warrant cancellation | Government: mere family ties insufficient; petitioner offered no evidence describing such hardship | Held: petitioner presented no evidence or argument meeting the stringent hardship standard |
| Whether prejudice is presumed because counsel failed to appeal | Petitioner argued ineffective assistance deprived him of appellate process | Government noted new counsel timely filed notice and BIA decided appeal, so no deprivation | No presumption of prejudice; appellate process was available and used |
Key Cases Cited
- Maravilla-Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004) (standard of review for BIA denial of motion to reopen; ineffective assistance requires prejudice)
- Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) (prejudice in ineffective-assistance context does not require proving ultimate entitlement)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (ineffective assistance requires showing counsel’s performance may have affected outcome)
- Morales Apolinar v. Mukasey, 514 F.3d 893 (9th Cir. 2008) (petitioner must at least show the asserted ground for relief is plausible)
- Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003) (presumption of prejudice when counsel’s errors deprive alien of appellate proceeding)
- Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000) (same principle regarding deprivation of appellate proceeding)
- Partap v. Holder, 603 F.3d 1173 (9th Cir. 2010) (affirming denial of remand where petitioner offered no evidence of exceptional and extremely unusual hardship)