Jean Ordonez-Garay v. Jefferson Sessions
14-72311
9th Cir.Jan 22, 2018Background
- Jean Carlos Ordonez-Garay appealed the BIA’s affirmance of an IJ’s denial of asylum, withholding of removal, and CAT relief, and the finding that he was inadmissible for falsely claiming U.S. citizenship under 8 U.S.C. § 1182(a)(6)(C)(ii).
- Ordonez-Garay had two attorneys: the first conceded the false-citizenship charge at hearing without exploring a retraction defense; the second declined to present evidence or elicit testimony, believing (without support) that due-process violations precluded putting on a defense.
- The IJ had indicated willingness to hear evidence about intent and the circumstances at the border and had admitted the second attorney to present such evidence, but the second attorney refused to do so.
- The BIA affirmed the IJ on multiple grounds (including that timely recantation was unavailable and that asylum/withholding were not shown), and the IJ denied a motion to reopen as well as relief on political-opinion and torture grounds.
- The Ninth Circuit found both attorneys’ failures objectively unreasonable and prejudicial because a retraction defense and lack of mens rea connection to U.S. citizenship were plausible and could have altered the inadmissibility outcome; the court granted relief in part and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel for first attorney conceding false-citizenship charge | First attorney failed to investigate or raise a retraction defense despite documents suggesting it; concession was unreasonable | Government relied on concession as valid and on counsel’s judgment | Counsel’s concession was objectively deficient; prejudicial because a retraction defense was colorable — ineffective assistance found |
| Ineffective assistance for second attorney’s refusal to present evidence | Second attorney unreasonably refused to present testimony/evidence despite opportunity | Government contended attorney strategy; relied on record as developed | Counsel’s refusal to investigate/present fell below professional standards and was prejudicial — ineffective assistance found |
| Timeliness of recantation (retraction doctrine) | Ordonez contends 2.5-hour gap does not, as matter of law, render recantation untimely; intent must be judged on promptness and circumstances | BIA/Judge treated recantation as untimely as a legal matter once referred to secondary | Ninth Circuit held BIA mis-stated law; 2.5 hours alone does not defeat timeliness; recantation timing is factual/contextual, not per se barred |
| Requirement of corroborating country conditions for deserter social-group claim | Ordonez argued credible testimony alone suffices (pre-REAL ID Act) to show persecution as a military deserter | BIA demanded country-conditions corroboration to reject deserter-based claim | BIA applied wrong standard by requiring general country evidence; credibility accepted so remand to reassess under Ninth Circuit precedents |
Key Cases Cited
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (due-process standard for ineffective assistance in immigration proceedings)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) (when concessions by counsel are unreasonable; counsel’s professional judgment standard)
- Munoz-Avila v. Holder, 716 F.3d 976 (7th Cir. 2013) (false claim to citizenship can have lifetime bar consequences)
- Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014) (timely recantation analysis and context-specific review)
- Ladha v. I.N.S., 215 F.3d 889 (9th Cir. 2000) (pre-REAL ID Act rule against requiring country-conditions corroboration for credible testimony)
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (defining particular social groups and analysis post-REAL ID Act issues relevant to deserters)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (particular-social-group and nexus analysis applicable on remand)