Hernandez v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERARDO HERNANDEZ, ELIZABETH 
PRADO, No. 04-72696
Petitioners, Agency Nos.
v.  A74-797-178
MICHAEL B. MUKASEY, Attorney A74-797-179
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 12, 2008*
Pasadena, California

Filed April 30, 2008

Before: Stephen S. Trott, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

4681
 HERNANDEZ v. MUKASEY 4683

COUNSEL

Meredith R. Brown of Glendale, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Richard M.
Evens, and Paul Fiorino, of Washington, D.C., for the respon-
dent.

OPINION

CALLAHAN, Circuit Judge:

Gerardo Hernandez and Elizabeth Prado, natives and citi-
zens of Mexico, petition for review of the Board of Immigra-
4684 HERNANDEZ v. MUKASEY
tion Appeals’ (BIA) decision denying their motion to reopen
their deportation proceedings on the ground of ineffective
assistance of counsel. Petitioners claim their deportation pro-
ceedings warrant reopening because their due process rights
were violated by the deficient assistance of an immigration
consultant. Petitioners contend they are entitled to raise an
ineffective assistance of counsel claim, even though they con-
cede they relied on an individual they knew was not an attor-
ney. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
We hold that knowing reliance upon the advice of a non-
attorney cannot support a claim for ineffective assistance of
counsel in a removal proceeding.

I. BACKGROUND

Petitioners are Mexican nationals who entered the United
States without inspection in 1989. In an attempt to legalize
their immigration status in the United States, they contacted
Estela Rodriguez, an immigration consultant, in Los Angeles,
California. Promising to file papers that would enable them to
obtain legal permanent residency, Ms. Rodriguez instead pre-
pared applications for asylum, which were denied at the
administrative level. On October 9, 1996, petitioners were
served with Orders to Show Cause and Notices of Hearing,
alleging they were subject to deportation for entry without
inspection under former Section 241(a)(1)(B) of the Immigra-
tion and Nationality Act, 8 U.S.C. § 1251(a)(1)(B), and set-
ting an immigration court hearing. Petitioners subsequently
withdrew their applications for asylum and applied for relief
in the form of suspension of deportation.

Petitioners allege Ms. Rodriguez provided them with defi-
cient assistance throughout their removal proceedings. They
claim Ms. Rodriguez advised them that it was unnecessary to
have an attorney present in court during their merits hearings.
They also allege she advised them that it was unnecessary to
call witnesses, provide expert testimony, or submit documents
in support of their applications for suspension of deportation.
 HERNANDEZ v. MUKASEY 4685
Petitioners appeared pro se throughout their deportation pro-
ceedings.

During their deportation proceedings, the Immigration
Judge (IJ) repeatedly asked petitioners if they wished to
obtain counsel. Each time, petitioners affirmatively waived
their right to obtain counsel. On at least two occasions, they
were also provided with a list of attorneys who provided free
legal services. When petitioners showed Ms. Rodriguez the
list of free attorneys and discussed with her the possibility of
retaining counsel, Ms. Rodriguez allegedly “tore up the list”
and told them that “whatever she [said] was the same as what
an attorney would tell [them].”

On August 9, 1999, the IJ pretermitted Hernandez’s appli-
cation for suspension of deportation. The IJ determined that
Hernandez’s conviction for domestic violence terminated his
accrual of physical presence for purposes of suspension of
deportation under the “stop-time rule” and that, as a result, he
lacked the necessary seven years of physical presence in the
United States. Hernandez’s pro se appeal, allegedly prepared
by Ms. Rodriguez, was dismissed by the BIA as untimely on
December 17, 1999. His subsequent motion to reopen before
the IJ, also allegedly prepared by Ms. Rodriguez, was denied
by the IJ as untimely on March 7, 2001. The denial was
affirmed by the BIA without an opinion on September 7,
2001.

On November 8, 1999, the IJ denied Prado’s application for
suspension of deportation on the ground that she had not
shown the requisite level of hardship to herself or her U.S. cit-
izen children. Prado filed a pro se appeal, allegedly prepared
by Ms. Rodriguez. On January 8, 2003, the BIA affirmed the
denial of suspension of deportation without an opinion. The
BIA denied Prado’s subsequent pro se motion to reconsider
on the merits on July 16, 2003.

On October 14, 2003, almost four years after Hernandez’s
appeal was dismissed and ten months after Prado’s appeal
4686 HERNANDEZ v. MUKASEY
was dismissed, petitioners, now represented by current coun-
sel, filed a motion to reopen. They argued that they were
denied due process and are entitled to have their deportation
proceedings reopened because of the deficient assistance they
received from Ms. Rodriguez. On April 28, 2004, the BIA
denied their motion, and petitioners timely filed this petition
for review.

II. STANDARD OF REVIEW

This court reviews the BIA’s ruling on a motion to reopen
for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773
(9th Cir. 2008). Questions of law, as well as claims of due
process violations, are reviewed de novo. Castillo-Perez v.
INS, 212 F.3d 518, 523 (9th Cir. 2000).

III. ANALYSIS

Petitioners claim their deportation proceedings warrant
reopening because their due process rights were violated by
the deficient assistance of an immigration consultant. They
assert an ineffective assistance of counsel claim even though
they concede they did not retain counsel. The BIA found that
petitioners could not base such a claim on the deficient advice
of a non-attorney, relying on our decision in Singh-Bhathal v.
INS, 170 F.3d 943 (9th Cir. 1999). In Singh-Bhathal, we held
that reliance on the mistaken advice of a non-attorney immi-
gration consultant was insufficient to demonstrate the “excep-
tional circumstances” necessary for reopening an in absentia
deportation order. Id. at 946-47.

[1] “Ineffective assistance of counsel in a deportation pro-
ceeding is a denial of due process under the Fifth Amendment
if the proceeding was so fundamentally unfair that the alien
was prevented from reasonably presenting his case.” Lopez v.
INS, 775 F.2d 1015, 1017 (9th Cir. 1985). Federal law guar-
antees an individual the opportunity to obtain counsel of his
own choice in “any removal proceedings before an immigra-
 HERNANDEZ v. MUKASEY 4687
tion judge.” 8 U.S.C. § 1362. We have found that this statu-
tory right stems from the Fifth Amendment’s guarantee of due
process in deportation proceedings. See Ray v. Gonzales, 439
F.3d 582, 587 (9th Cir. 2006). Thus, if an individual chooses
to retain counsel, his or her due process right “includes a right
to competent representation.” Id. (italics in original). If coun-
sel’s assistance is deficient, and prejudice can be shown, we
have recognized an ineffective assistance of counsel claim in
removal proceedings. See, e.g., id. at 590; Castillo-Perez, 212
F.3d at 526.

Ineffective assistance of counsel claims arise directly out of
the duties and expectations created by an attorney’s unique
role in the legal system. The Supreme Court has recognized
that, pursuant to the Sixth Amendment, a criminal defendant
has a right to an attorney to ensure that he or she receives a
fair trial. See Strickland v. Washington, 466 U.S. 668, 684
(1984) (“[T]his Court has recognized that the Sixth Amend-
ment right to counsel exists, and is needed, in order to protect
the fundamental right to a fair trial.”). In Strickland, the Court
reasoned that this “presumption” was justified by the legal
profession’s particular “skill and knowledge,” its professional
standards, and its “norms of practice.” Id. at 688. Thus, where
an attorney’s performance was “outside the wide range of
professionally competent assistance” and not “the result of
reasonable professional judgment,” see id. at 690, the proper
functioning of the adversarial process itself was called into
question, and a criminal defendant was entitled to a remedy
in the form of a new trial (assuming he had also demonstrated
prejudice). Id. at 691.

[2] Although the right to counsel in removal proceedings is
statutory, 8 U.S.C. §§ 1229a(b)(4)(A), 1362, and does not
derive from the Sixth Amendment, the BIA has also recog-
nized that an attorney’s special competence and duties lie at
the heart of ineffective assistance of counsel claims. In Matter
of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the BIA required
that, to support a claim of ineffective assistance of counsel, an
4688 HERNANDEZ v. MUKASEY
aggrieved party must: (1) submit an affidavit setting forth in
detail the agreement entered into with counsel regarding the
person’s representation; (2) present evidence that counsel was
informed of the allegations of ineffective assistance and given
an opportunity to respond; and (3) either show that a com-
plaint against counsel was filed with the proper disciplinary
authorities or explain why no such complaint was filed. See
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (citing Mat-
ter of Lozada). These requirements were intended, in part, to
“hold attorneys to appropriate standards of performance” in
immigration proceedings, Lo v. Ashcroft, 341 F.3d 934, 937
(9th Cir. 2003), and we have generally required aliens to com-
ply with Lozada in support of this goal. See Iturribarria v.
INS, 321 F.3d 889, 900 (9th Cir. 2003) (noting that the
Lozada requirements have been adopted by this court).

[3] Our decisions have also emphasized an attorney’s
unique role in removal proceedings. We have observed that
“[t]he proliferation of immigration laws and regulations has
aptly been called a labyrinth that only a lawyer could navi-
gate.” See Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir.
2005); see also Hernandez-Gil v. Gonzales, 476 F.3d 803,
808 (9th Cir. 2007) (noting that “the statutory right to counsel
exists so that an alien has a competent advocate acting on his
or her behalf at removal proceedings”); United States v.
Bahena-Cardenas, 411 F.3d 1067, 1077 (9th Cir. 2005)
(“[T]he right to counsel is important because of the difficulty
aliens have in presenting their cases forcefully and effective-
ly.”). Our cases concerning the statutory right to counsel in
removal proceedings particularly recognize the special skills
and duties of attorneys. See, e.g., Mendoza-Mazariegos v.
Mukasey, 509 F.3d 1074, 1085 (9th Cir. 2007) (finding preju-
dice because “competent counsel” would have obtained the
required background check, and petitioner’s failure to do so
resulted in a denial of cancellation of removal); Hernandez-
Gil, 476 F.3d at 809 (finding prejudice because ‘[a] trained
immigration lawyer . . . is more familiar . . . with the stan-
 HERNANDEZ v. MUKASEY 4689
dards and factors an IJ examines” and could have presented
evidence more effectively).

[4] For these reasons, we have also held that reliance on the
deficient advice of an attorney’s agent was reasonable and so
met the statutory standard of “exceptional circumstances”
under 8 U.S.C. § 1229a(b)(5)(C)(i), warranting reopening of
an individual’s in absentia order of removal. See Monjaraz-
Munoz v. INS, 327 F.3d 892, 897-98 (9th Cir. 2003).

[5] By contrast, we have held that reliance on a non-
attorney immigration consultant’s deficient advice did not
meet that “exceptional circumstances” standard, where an
individual chose to disregard the INS’s written notice to
appear and relied instead on the consultant’s advice that he
did not need to do so. See Singh-Bhathal, 170 F.3d at 946-47.
We explained these contrasting results by again noting the
“crucial difference” between attorneys and immigration con-
sultants, particularly an attorney’s “special role” in assisting
individuals through our complex removal proceedings. See
Monjaraz-Munoz, 327 F.3d at 897.

Retaining this distinction in the context of ineffective assis-
tance of counsel claims is especially important. As Strickland
makes clear, ineffective assistance of counsel claims presup-
pose the specific professional standards and legal obligations
of attorneys. 466 U.S. at 687-89. Admission to the profession
is usually regulated by state law: lawyers generally must have
attended law school, passed a rigorous bar exam and met
stringent character and fitness standards.1 See, e.g., CAL. BUS.
& PROF. CODE §§ 6060, 6062; IDAHO CODE ANN. § 3-101. In
most states, attorneys must also be members of their respec-
1
The way in which the legal profession is regulated varies from state to
state. Where admission standards are not established by state law, they are
usually set by the state bar association with authority delegated from the
state supreme court. See, e.g., Ariz. R. S. Ct. 33-37; Wash. R. S. Ct.,
Admission to Practice Rules 3-5.
4690 HERNANDEZ v. MUKASEY
tive state bar associations, which have authority to establish
and enforce rules of professional conduct, some of which may
even have been incorporated into state law.2 These rules and
statutes, as noted by the Supreme Court in Strickland, impose
on attorneys a range of obligations, including a duty of loy-
alty, a duty to avoid conflicts of interest, a duty to consult
with the client, and “a duty to bring to bear such skill and
knowledge as will render the trial a reliable adversarial testing
process.” 466 U.S. at 688. An attorney’s failure to perform
these duties may lead to the suspension or revocation of his
or her license to practice law. See, e.g., Ariz. R. S. Ct. 53, 60-
61; CAL. BUS. & PROF. CODE §§ 6078, 6100-6106; IDAHO CODE
ANN. § 3-301; Mont. R. S. Ct., Lawyer Disciplinary Enforce-
ment Rules 8-9; MONT. CODE ANN. § 37-61-301; Wash. Rules
for Enforcement of Lawyer Conduct, § 13.1.

[6] By contrast, immigration consultants have no formal
legal training and are not subject to testing or licensing
requirements that set and maintain standards of competence.
There are no professional rules or statutes that impose ethical
duties on a non-attorney consultant. Accordingly, the law has
never presumed that their participation is necessary or desir-
able to ensure fairness in removal proceedings; indeed, they
are specifically barred from representing individuals in
removal proceedings.3 See 8 C.F.R. § 1292.1(a)(3)(iv). In
2
The extent to which attorneys’ duties are statutory also varies from
state to state. For example, in California, the rules of professional conduct
are fully incorporated into state law, see CAL. BUS. & PROF. CODE § 6077,
whereas in Arizona, the profession is entirely self-regulating and there is
no statutory oversight. In Arizona, an attorney’s professional conduct is
regulated entirely by the Arizona Supreme Court, although it has dele-
gated authority to set and enforce professional standards to the state bar
association. See Ariz. R. S. Ct. 31-32.
3
Federal regulations do permit individuals other than licensed attorneys
to represent individuals in certain matters in immigration courts and before
the BIA. However, they generally must meet certain standards, including
demonstrating that they are being supervised by an attorney or otherwise
have access to “adequate knowledge, information and experience” to pro-
vide competent representation. See 8 C.F.R. §§ 1292.1-2.
 HERNANDEZ v. MUKASEY 4691
sum, non-attorney immigration consultants simply lack the
expertise and legal and professional duties to their clients that
are the necessary preconditions for ineffective assistance of
counsel claims.

Furthermore, immigration judges are required at several
stages of removal proceedings to advise each petitioner that
he or she should consider retaining an attorney. Orders to
Show Cause and Notices to Appear initially advise individu-
als that they may be represented by counsel. See 8 C.F.R.
§ 1003.15(b)(5). At the start of a removal hearing, immigra-
tion judges are required to advise each person that he or she
is entitled to retain counsel, and the judge must have each per-
son state at that time whether he or she desires representation.
See 8 C.F.R. § 1240.10(a)(1). Federal regulations even
encourage individuals to retain counsel by requiring immigra-
tion judges to advise them of the availability of free legal ser-
vices located in the district in which the removal hearing is
being held and to confirm that the alien has received the list
of such programs. See 8 C.F.R. §§ 1240.10(a)(2), (a)(3).

[7] If, notwithstanding these notices, an individual chooses
not to retain an attorney,4 and instead knowingly relies on
assistance from individuals not authorized to practice law,
such a voluntary choice will not support a due process claim
based on ineffective assistance of counsel. Because individu-
als have a statutory right to obtain counsel in removal pro-
ceedings, a failure to recognize that right, or an attorney’s
misdeeds, can interfere with the proceedings, resulting in a
denial of due process. See, e.g., Biwot, 403 F.3d at 1099-1100
(denial of brief continuance to permit alien to obtain counsel
violated statutory right to counsel); Baltazar-Alcazar v. INS,
386 F.3d 940, 946-47 (9th Cir. 2004) (predicating waiver of
statutory right to counsel on summary disqualification of
4
An alien may, of course, choose to appear pro se, so long as the deci-
sion not to retain counsel is knowing and voluntary. See Tawadrus v. Ash-
croft, 364 F.3d 1099, 1103 (9th Cir. 2004).
4692 HERNANDEZ v. MUKASEY
entire law firm violated right to counsel). However, when
petitioners knowingly and voluntarily waive their right to
retain counsel, they are entitled to represent themselves before
the IJ and the BIA, and to present their case as they see fit.

[8] Petitioners relied on Ms. Rodriguez, knowing she was
an immigration consultant and not an attorney. The record
indicates that, whatever initial confusion there may have been,
petitioners knew early in their relationship with Ms. Rodri-
guez that she was not an attorney but continued to rely upon
her advice for several years. The record indicates that the IJ
repeatedly asked petitioners if they wished to obtain counsel,
and that petitioners affirmatively declined. On at least two
occasions, they were even provided with a list of attorneys
who would provide free legal services. Having ensured that
petitioners understood they were entitled to retain counsel and
waived that right, the IJ properly allowed petitioners to pro-
ceed as they wished. Thus, this is not a case where petitioners
were effectively denied counsel. To the contrary, petitioners
affirmatively chose to rely on an individual they knew was
not an attorney. Because petitioners’ reliance on a non-
attorney was not sanctioned by law, advice from Ms. Rodri-
guez did not affect the fundamental fairness of their proceed-
ings. There was no denial of due process.

Our holding does not preclude pro se petitioners from
bringing due process claims on other grounds. We have long
held that an individual is entitled to due process in removal
proceedings. See generally Campos-Sanchez v. INS, 164 F.3d
448, 450 (9th Cir. 1999) (“The Fifth Amendment guarantees
due process in deportation proceedings.”). Each person
remains entitled to “a full and fair hearing of his claims and
a reasonable opportunity to present evidence on his behalf.”
See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We
hold only that reliance upon the advice of a non-attorney can-
not form the basis of a claim for ineffective assistance of
counsel in a removal proceeding.

The petition for review is DENIED.