Sergio Calderon-Rosas v. Attorney General United States
957 F.3d 378
| 3rd Cir. | 2020Background
- Sergio Calderon-Rosas, a Mexican national and long‑time U.S. resident, has three U.S. citizen children; removal proceedings followed a 2018 DUI charge (later dismissed).
- He retained attorney Douglas Grannan, who was later disbarred for repeated neglect; Grannan failed to communicate, visit Calderon‑Rosas in detention, pursue asylum, or obtain medical records for the children.
- At the IJ hearing the asylum application was deemed abandoned; the IJ considered but rejected cancellation of removal because the children’s hardship did not meet the “exceptional and extremely unusual” standard, and alternatively denied relief in the exercise of discretion.
- New counsel filed a motion to remand with the BIA, submitting new medical records showing the children’s significant mental‑health and developmental issues; the BIA denied the motion and dismissed the appeal, stating Calderon‑Rosas had not shown prejudice and that it could not consider new evidence on appeal.
- The Third Circuit held it has jurisdiction to review due process and ineffective‑assistance claims by petitioners seeking discretionary relief, found the BIA misapplied the prejudice standard and inadequately considered the new evidence, vacated the BIA’s denial of the motion to remand, and remanded for a new hearing on cancellation of removal; the asylum claim denial was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review Due Process / ineffective‑assistance claims where relief is discretionary | Calderon‑Rosas: Due process protects a fundamentally fair procedure for discretionary relief; courts may review colorable constitutional claims. | Government: No protected liberty/property interest in discretionary relief; courts lack jurisdiction to hear such due process claims. | Court: Third Circuit has jurisdiction; longstanding precedent requires full and fair hearings for discretionary relief and permits review of such constitutional claims. |
| Ineffective assistance re: cancellation of removal (failure to obtain children’s medical records) | Grannan’s failures were constitutionally deficient and prejudiced the case; new medical evidence creates a reasonable probability of a different outcome. | Govt: Argues no prejudice shown and BIA properly denied remand; outcome would not have changed. | Court: BIA misapplied the prejudice standard and failed to analyze new evidence; remand vacated and new hearing ordered on cancellation. |
| Ineffective assistance re: asylum (failure to file adequate application) | Counsel’s abandonment of asylum claim was deficient; may warrant remand. | Govt: Even if deficient, petitioner cannot show prejudice because asylum claim lacks plausible merits. | Court: Denied relief on asylum claim — counsel’s errors not shown to have prejudiced an asylum claim lacking plausible statutory grounds. |
| Procedural due process at IJ (admission of inaccurate tax returns; initial absence of interpreter) | Errors undermined fairness of hearing. | Govt: Errors did not prejudice petitioner; IJ did not rely adversely on tax returns and an interpreter was present for most of the hearing. | Court: Exhaustion barred some claims; for exhausted claims no fundamental unfairness shown due to lack of prejudice; these claims denied. |
Key Cases Cited
- Fadiga v. Attorney General, 488 F.3d 142 (3d Cir. 2007) (ineffective‑assistance standard and prejudice test in immigration proceedings)
- Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996) (statutory procedures for asylum must be fundamentally fair)
- Serrano‑Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017) (due process requires full and fair hearing; three core protections)
- Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc) (framework for procedural protections in removal proceedings)
- Filja v. Gonzales, 447 F.3d 241 (3d Cir. 2006) (BIA must show it considered ineffective‑assistance claims and record evidence)
- Omar v. Mukasey, 517 F.3d 647 (2d Cir. 2008) (deciding ineffective‑assistance claims does not substitute court discretion for agency discretion)
- Reno v. Flores, 507 U.S. 292 (1993) (Fifth Amendment due process applies to aliens in deportation proceedings)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (Due Process Clause applies to all persons within the U.S.)
- Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010) (presumption of prejudice in certain contexts)