FILED
UNITED STATES COURT OF APPEALS JUN 10 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
PEDRO CRUZ-CARBAJAL and No. 06-74999
ANDREA GALEANA ALONZO,
Agency Nos. A095-184-049
Petitioners, A095-107-826
v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Respondent’s motion to amend the memorandum disposition is granted. The
memorandum disposition filed April 25, 2011, is amended to appear as filed
concurrently with this Order. Judge Bybee’s dissent is unchanged from the
original filed on April 25, 2011.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 10 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PEDRO CRUZ-CARBAJAL; ANDREA No. 06-74999
GALEANA ALONZO,
Agency Nos. A095-184-049
Petitioners, A095-107-826
v.
AMENDED MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2011
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Petitioners Pedro Cruz-Carbajal and Andrea Galeana Alonzo petition for
review of the decision of the Board of Immigration Appeals (BIA) denying their
motion to reopen. As the facts and procedural history are familiar to the parties,
we do not recite them here except as necessary to explain our disposition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We lack jurisdiction over Petitioners’ unexhausted procedural due process
arguments, Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004), Petitioners’
disagreement with the underlying hardship determination, 8 U.S.C.
§ 1252(a)(2)(B)(i), and Petitioners’ challenge to the BIA’s refusal to reopen
proceedings to address new evidence of hardship, Fernandez v. Gonzales, 439 F.3d
592, 602–03 (9th Cir. 2006). Those claims are dismissed for lack of jurisdiction.
We have jurisdiction over Petitioners’ ineffective assistance of counsel
claim. Fernandez, 439 F.3d at 602–03. This claim is exhausted because it was
properly raised in a timely motion to reopen, see Iturribarria v. INS, 321 F.3d 889,
896–97 (9th Cir. 2003), and, in any event, the BIA decided it on the merits, Socop-
Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001) (en banc).
The BIA erred by concluding that Petitioners’ counsel’s performance was
adequate. Petitioners submitted unrebutted evidence to the BIA that they “never
met” the attorney who represented them at their final hearing before the
Immigration Judge, their attorney was “unprepared and unfamiliar with [their]
files,” and their attorney “did not allow any of [their] witness[es] to speak to the
Judge,” even though the witnesses were present and prepared to testify.
Petitioners’ counsel failed to introduce any evidence about Petitioners’ parents’
hardship (though such evidence was elicited by the Government on cross-
examination), and told Petitioners that it was “not . . . important” to submit
documentation about their parents’ health problems. Our cases have deemed
similar conduct to constitute inadequate performance. E.g., Morales Apolinar v.
Mukasey, 514 F.3d 893, 898–99 (9th Cir. 2008); Jie Lin v. Ashcroft, 377 F.3d
1014, 1024–26 (9th Cir. 2004). The BIA erred as a matter of law when it reached
the contrary conclusion.
The BIA also erred to the extent that it addressed prejudice under a “prima
facie eligibility” standard. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th
Cir. 2004) (per curiam). We remand so that the BIA can address prejudice in the
first instance and under the proper legal standard. See INS v. Ventura, 537 U.S. 12,
16 (2002) (per curiam).
Each party shall bear its own costs.
Petition for review DISMISSED IN PART and GRANTED IN PART;
REMANDED.
FILED
Cruz-Carbajal v. Holder, No. 06-74999 JUN 10 2011
MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree with the majority that we lack jurisdiction to review the BIA’s denial
of Petitioners’ motion to reopen based on new evidence of hardship, and that
Petitioners’ failure to exhaust their procedural due process arguments preclude
them from raising them before us at this time. The majority also correctly
determines that we have jurisdiction over Petitioners’ ineffective assistance of
counsel claim. The majority veers off course, however, in finding that Petitioners
met the heavy burden of demonstrating that counsel who represented Petitioners in
proceedings before the Immigration Judge (“IJ”) performed inadequately.
An alien subject to a final order of removal may be entitled to a new hearing
if prior counsel’s performance was so deficient that it resulted in “proceeding[s] . .
. so fundamentally unfair that the alien was prevented from reasonably presenting
his case.” Jie Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004) (quoting Lopez
v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)). In light of this high standard,
overturning the BIA’s fact-finding on this issue requires more than the analysis the
majority performed here.
While the performance of Petitioners’ counsel before the IJ was far from
exemplary, the record supports the BIA’s finding that counsel’s performance was
not so poor as to deprive Petitioners of the opportunity to fairly present their case.
With the guidance of counsel, Petitioners were able to establish that they met all of
the criteria for withholding of removal, save for “exceptional and extremely
unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1)(D). Both
Petitioners testified about the hardship their removal would impose on Ms.
Alonzo’s parents, although the parents themselves did not testify. Petitioners’
counsel also presented a report on the psychological condition of Petitioner’s
daughter by her psychiatrist, but the psychiatrist was not called to testify. Had
counsel called on the parents and the psychiatrist to testify, Petitioners might have
been able to put forward a marginally stronger case on hardship. But the relevant
question is whether failure to call these witnesses prevented Petitioners from
“reasonably presenting [their] case,” Jie Lin, 377 F.3d at 1023, not whether counsel
failed to present their best case.
Because Petitioners cannot show that counsel’s performance was
constitutionally inadequate, it was not necessary for the BIA to address prejudice.
I therefore would deny the petition for review with respect to the ineffective
assistance of counsel claim.
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