United States v. Brigido Lopez-Chavez
757 F.3d 1033
9th Cir.2014Background
- Lopez-Chavez, a lawful permanent resident since 1990, was convicted in Missouri (2003) of possession with intent to deliver marijuana under Mo. Rev. Stat. § 195.211 and was placed in removal proceedings alleging he had committed an aggravated felony under INA § 101(a)(43)(B).
- His immigration attorney, Pari Sheth, conceded the factual allegations and conceded removability at the removal hearing, reserved the right to appeal but never filed an appeal to the BIA or a petition for review in the Seventh Circuit, nor discussed appeal options with Lopez-Chavez.
- Lopez-Chavez was removed (deported) in 2003. In 2010 he was indicted for attempted reentry under 8 U.S.C. § 1326 and moved to dismiss the indictment by collaterally attacking the underlying removal order, arguing ineffective assistance in the immigration proceedings and that his state conviction was not an aggravated felony under federal law.
- The district court denied the motion; Lopez-Chavez pleaded guilty to attempted reentry but reserved the right to appeal the denial. The Ninth Circuit reviewed the collateral attack de novo.
- The Ninth Circuit found counsel’s concession and failure to appeal unreasonable given controlling BIA guidance (In re Yanez-Garcia) and the open circuit split at the time; the Seventh Circuit later adopted the narrower rule that would have foreclosed removability in cases like Lopez-Chavez’s.
- The Ninth Circuit concluded Lopez-Chavez established ineffective assistance of counsel, prejudice (the likely outcome would have favored him), failure to exhaust and denial of judicial review, and therefore that the removal was fundamentally unfair — requiring dismissal of the § 1326 indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel provided ineffective assistance in conceding removability and failing to appeal | Sheth conceded an aggravated-felony charge without researching BIA precedent (Yanez-Garcia) and failed to pursue available appeals; this prevented a full presentation | Government contended counsel need not anticipate later decisions and that conceding was not necessarily ineffective | Court: Counsel was ineffective for conceding removability and failing to appeal when an open circuit split and BIA precedent made appeal viable |
| Whether Lopez-Chavez suffered prejudice/fundamental unfairness from counsel’s performance | Prejudice shown because the Seventh Circuit later adopted the rule (Gonzales-Gomez) that would have made his conviction non-removable; outcome likely different | Government disputed but could not overcome subsequent Seventh Circuit authority demonstrating favorable outcome | Court: Prejudice established; removal was fundamentally unfair and violated due process |
| Whether procedural prerequisites for collateral attack (exhaustion and judicial review) were satisfied | Failure to appeal resulted from counsel’s ineffective assistance, which excuses exhaustion and deprived him of judicial review | Government argued procedural rules (e.g., Matter of Lozada) bar reliance on counsel error | Court: Ineffective assistance was clear on record; exhaustion and review requirements excused/established, permitting collateral attack under 8 U.S.C. § 1326(d) |
| Whether the Missouri offense categorically constituted an aggravated felony | Lopez-Chavez argued § 195.211 criminalized conduct that could fall within federal misdemeanor exception for small-amount, no-remuneration marijuana distributions and thus was not categorically an aggravated felony | Government maintained the state felony classification supported removability | Court: Under the applicable rule (and later Ninth/Seventh holdings), the Missouri statute covered conduct matching federal misdemeanor exception; thus counsel should not have conceded aggravated-felony status (court did not need to decide final categorization in light of ineffective-assistance holding) |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (Sup. Ct. 2013) (categorical approach and federal misdemeanor exception for small-amount marijuana distributions)
- Lopez v. Gonzales, 549 U.S. 47 (Sup. Ct. 2006) (requirements for treating a state drug offense as a federal felony under CSA)
- Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006) (Seventh Circuit adopted rule that state felonies punishable as federal misdemeanors are not aggravated felonies)
- Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (collateral attack on removal requires exhaustion, deprivation of judicial review, and fundamental unfairness)
- Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (standard for evaluating counsel performance; performance judged at time of conduct)