NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 03 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
MIGUEL PEDROZA, No. 08-73266
Petitioner, Agency No. A095-584-542
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 1, 2011 **
San Francisco, California
Before: B. FLETCHER and THOMAS, Circuit Judges, and GERTNER, District
Judge.***
Miguel Pedroza, a native and citizen of Mexico, petitions for review of an
order by the Board of Immigration Appeals (“BIA”) denying his motion to reopen
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Nancy Gertner, District Judge for the U.S. District
Court for Massachusetts, Boston, sitting by designation.
alleging ineffective assistance of counsel. We grant the petition for review.
Because the parties are familiar with the factual and procedural background, we
need not recount it here.
I
The BIA erred when it held that Pedroza had not satisfied the requirements
of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). In Lozada,
the BIA held that an alien alleging ineffective assistance of counsel must: (1)
submit an affidavit explaining in detail the agreement that was entered into
with prior counsel regarding legal representation, (2) submit evidence that he
has informed prior counsel of the allegations of ineffective assistance and
provided the attorney with an opportunity to respond, and (3) if violation of
ethical or legal responsibilities is alleged, file a complaint with proper
disciplinary authorities or explain why such a complaint has not been filed.
Puga v. Chertoff, 488 F.3d 812, 816 (9th Cir. 2007) (citing Lozada, 19 I. & N. Dec.
at 639). Where, as here, “the record shows ‘a clear and obvious case of ineffective
assistance,’” we have “not required strict compliance with [the] Lozada
requirements.” Id. (quoting Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.
2002)). Pedroza has complied with Lozada and the BIA abused its discretion when
it concluded otherwise.
The BIA stated only that Pedroza “failed to establish that he provided his
former attorney with notice of the allegations against him or an opportunity to
respond.” To the contrary, Pedroza’s motion to reopen stated that he had
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“informed [Hollister] of [his] claim, and [gave] him an opportunity to respond, by
serving him with a copy of [the] motion.” Neither the BIA in its decision nor the
government on appeal provides any meaningful reason why this does not constitute
“evidence that counsel was informed of the allegations and allowed to respond.”
Reyes v. Ashcroft, 358 F.3d 592, 598 (9th Cir. 2004) (quotation omitted). The
government additionally argues that Pedroza’s attaching the State Bar of California
Complaint Form against Hollister as an exhibit to his motion to reopen was
insufficient to satisfy Lozada’s third requirement, but this is clearly “an indication
that a complaint has been lodged with the bar.” Id. (quotation omitted). The BIA
abused its discretion when it held that Pedroza did not satisfy Lozada’s
requirements.
II
After issuing its decision in Pedroza’s case, the BIA concluded in Matter of
Zmijewska, 24 I. & N. Dec. 87 (BIA 2007) that the bar on cancellation of removal
in 8 U.S.C. § 1229c(d)(1) does not apply where the “alien, through no fault of his
or her own, is unaware of the voluntary departure order.” 24 I. & N. Dec. at 94.
The BIA further concluded that ineffective assistance of counsel meant that
Zmijewska “did not ‘voluntarily’ fail to depart within the period of voluntary
departure.” Id. at 95.
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Pedroza qualifies for this exception. While the BIA may have provided
Pedroza’s attorney with written notice of its decision, it was not its practice at the
time to also provide aliens with such notice,1 and Pedroza declared that his attorney
“never spoke or met with [him] during” the relevant time when he might have
learned of the BIA’s grant of voluntary departure, this court’s temporary stay, and
the lifting of that stay when this court’s mandate issued.
Our court’s decision in Granados-Oseguera v. Mukasey, 546 F.3d 1011
(2008) is distinguishable. As in the case at bar, in Granados-Oseguera the
petitioner sought review of the BIA’s denial of an ineffective assistance-based
motion to reopen in part because the petitioner had overstayed his voluntary
departure deadline. Id. at 1013. However, in that case, the petitioner was by all
accounts aware of the BIA’s decision and the relevant deadlines for voluntary
departure, but argued that he relied on his counsel’s assurances that his overstay
would be excused. Id. at 1014. Here, by contrast, Pedroza alleges that as a result
of Hollister’s ineffective assistance he never received notice of the BIA’s decision,
and was unaware of the voluntary departure deadline. The Granados-Oseguera
1
Only after the Attorney General issued his decision in Matter of Compean,
24 I. & N. Dec. 710 (A.G. 2009), was the BIA required to send “courtesy copies”
of its final decisions directly to respondents, in addition to those copies sent to
respondents’ lawyers.
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observation that the BIA is statutorily required to deny a motion to reopen when
the petitioner has overstayed the voluntary departure period, 546 F.3d at 1015–16,
is inapplicable where, as here, petitioner’s argument is that his ineffective counsel
is solely responsible for the overstay, which therefore is not “voluntary.” See
Zmijewska, 24 I. & N. Dec. at 94–95.
Accordingly, we remand to allow the BIA to consider Pedroza’s motion to
reopen in light of Zmijewska.
PETITION GRANTED; REMANDED.
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