FILED
NOT FOR PUBLICATION FEB 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MARVIN ALEÈANDER FRANCO, No. 09-71272
Petitioner, Agency No. A041-132-618
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2010
Pasadena, California
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
Marvin Alexander Franco (Franco) petitions for review of a decision of the
Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration
Judge's (IJ) denial of Franco's application for relief under the United Nations
Convention Against Torture (CAT). We grant the petition and remand to the BIA.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Franco appeals only the BIA's denial of his ineffective assistance of counsel
claim. The BIA abused its discretion in denying his claim.
1. The BIA incorrectly held that Matter of Lozada, 19 I&N Dec. 637
(BIA 1988) barred Franco's claim, despite an obvious and facial ineffectiveness by
Franco's former counsel that cannot be explained as any possible tactical
consideration. Franco's allegation that his former counsel failed to include the
entire Harvard report is 'plain on the face of the administrative record.' See
Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000). Moreover, the
portion of the report not included by Franco's former counsel directly addressed
the basis for Franco's CAT claim. See Castillo-Perez v. INS, 212 F.3d 518, 525
(9th Cir. 2000) (holding that the Lozada requirements 'need not be rigidly
enforced' when 'an adequate factual basis exists in the record for an
ineffectiveness complaint . . . and the complaint is a legitimate and substantial
one'). The BIA abused its discretion in determining that Franco had not met the
standard for noncompliance with Matter of Lozada.
2. The BIA also applied the now-overruled Compean I standard in
determining whether Franco's former counsel failed to perform with sufficient
competence. See Matter of Compean, Bangaly & J-E-C- (Compean II), 25 I&N
Dec. 1, 3 (A.G.2009) (vacating Matter of Compean, Bangaly & J-E-C- (Compean
2
I), 24 I&N Dec. 710 (A.G. 2009) and directing the BIA to apply pre-Compean
standards). Contrary to the government's assertion, the BIA clearly relied on
Compean's egregious conduct standard. On remand, the BIA must consider
whether Franco's former counsel failed to 'perform with sufficient competence,'
Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004), and whether 'competent
counsel would have acted otherwise,' Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858 (9th Cir. 2004), by including the entire report in the record.
3. Finally, the BIA applied the wrong legal standard to its prejudice
analysis. The BIA assessed prejudice under a standard requiring Franco to show
that he would have won his CAT claim had the entire report been submitted. This
approach is contrary to established case law in this circuit. See Ray v. Gonzales,
439 F.3d 582, 587 (9th Cir. 2006) (holding that 'prejudice is found when the
performance of counsel was so inadequate that it may have affected the outcome of
the proceedings'); Maravilla, 381 F.3d at 858 (holding that petitioner 'need not
show that [he] would win or lose on any claims.'). On remand, the BIA must
determine whether submission of the entire Harvard report may have affected the
outcome of proceedings.
GRANTED AND REMANDED.
3
FILED
Franco v. Holder, No. 09-71272 FEB 17 2011
MOLLY C. DWYER, CLERK
CALLAHAN, CIRCUIT JUDGE, concurring in part and dissenting in part:CO U RT OF AP PE A LS
U.S .
I concur in the majority's disposition to the extent that it holds that the
Board of Immigration Appeals ('BIA') erred in relying on the egregious conduct
standard articulated in Matter of Compean, Bangaly & J-E-C- (Compean I), 24
I&N Dec. 710 (A.G. 2009). See Matter of Compean, Bangaly & J-E-C- (Compean
II), 25 I&N Dec. 1, 3 (A.G.2009) (vacating Compean I), 24 I&N Dec. 710 (A.G.
2009). However, I dissent from the remainder of the majority's disposition.
The majority finds that Franco's attorney's failure to include portions of the
Harvard report is facial ineffective assistance of counsel in contravention of Matter
of Lozada, 19 I&N Dec. 637 (BIA 1988). I disagree. Franco conceded that he did
not comply with the Lozada requirements and the BIA concluded that while the
omitted material might have been relevant - and might even have presented a more
compelling case for Franco - the submission of the omitted portions of the report
would not maµe it more liµely than not that Franco would be entitled to protection
under the CAT and that the failure of Franco's attorney to include the omitted
portions did not rise to the level of ineffective assistance of counsel. Specifically,
the BIA determined that the omitted material did not demonstrate that Franco was
liµely to be tortured. Furthermore, the BIA noted that the entire Harvard report did
not overcome the other evidence in the record considered by the Immigration
Judge, which included a State Department Issue Paper.
The BIA's determination that the material in the Harvard report did not
overcome the other evidence in the record regarding Franco's CAT claim is not an
unreasonable evaluation of Franco's case and we are not entitled to reweigh the
evidence on appeal. Donchev v. Muµasey, 553 F.3d 1206, 1213 (9th Cir. 2009);
Kotasz v. I.N.S., 31 F.3d 847, 851 (9th Cir. 1994). Accordingly, despite the BIA's
error in relying on Compean I, I would affirm the BIA's ineffective assistance of
counsel determination.
I would also affirm the BIA's lacµ of prejudice determination. At issue here
is whether the omitted portions of the Harvard report would have affected whether
or not the BIA granted Franco's CAT claim. The BIA gave specific reasons for
why the omitted material in the Harvard report would not affect Franco's CAT
claim. In context, it is clear that the BIA reasonably concluded that the submission
of the entire Harvard report would not have affected the outcome of Franco's
claim, so remand on this issue is unnecessary and again fails to respect the
deferential standard of review we owe the BIA. See, e.g., Halim v. Holder, 590
F.3d 971, 975 (9th Cir. 2009).
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