FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO TORRES-CHAVEZ,
Petitioner, No. 05-72226
v.
Agency No.
A090-543-482
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 10, 2009—San Francisco, California
Filed June 5, 2009
Before: M. Margaret McKeown and Sandra S. Ikuta,
Circuit Judges, and Frederic Block,* District Judge.
Opinion by Judge Ikuta
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
6765
6768 TORRES-CHAVEZ v. HOLDER
COUNSEL
Steven P. Brazelton, Reno, Nevada, for the petitioner-
appellant.
Peter D. Kiesler, M. Jocelyn Lopez Wright, Carol Federighi,
Office of Immigration Litigation, United States Department of
Justice, Washington, D.C., for the respondent-appellee.
OPINION
IKUTA, Circuit Judge:
Eduardo Torres-Chavez petitions for review of a final order
of removal under the Immigration and Nationality Act (INA).
He claims that his concession of alienage before the Immigra-
tion Judge was the result of legal representation so egre-
giously deficient that it violated his Fifth Amendment right to
due process. We hold that Torres’s due process rights were
not violated by his lawyer’s performance, and accordingly
deny his petition for review.
I
Torres entered the United States without authorization in
December 1981, at the age of fifteen. In 1987, Torres sought
to take advantage of the amnesty provisions of the Immigra-
tion Reform and Control Act (IRCA), Pub. L. No. 99-603,
§ 201, 100 Stat. 3359, 3394 (1986) (codified as amended at
section 245A of the INA, 8 U.S.C. § 1255a).
IRCA created a one-year window during which aliens who
unlawfully entered the United States before January 1, 1982
could obtain legal-resident status. See id. §1255a(a)(1)(A). To
obtain temporary residence, an alien was required to apply for
a Form I-688 Temporary Resident Card between May 5, 1987
TORRES-CHAVEZ v. HOLDER 6769
and May 4, 1988. See 8 C.F.R. § 245a.2(a), (j). An alien who
obtained temporary-resident status was then required to file an
application for permanent residence within 43 months in order
to adjust his status to that of a lawful permanent resident. See
8 U.S.C. § 1255a(b)(1)(A), (b)(2)(C).1
“In order to alleviate the concerns of illegal aliens that
information disclosed in their applications would be used as
a basis to prosecute or deport them,” 17 Op. Off. Legal Coun-
sel 172, 173 (1993), section 245A provides a confidentiality
provision, stating that the Attorney General may not “use the
information furnished by the applicant pursuant to an applica-
tion filed under this section for any purpose other than to
make a determination on the application, for enforcement of
paragraph (6) [prohibiting false statements in applications], or
for the preparation of reports to Congress.” 8 U.S.C.
§ 1255a(c)(5)(A)(i). This confidentiality extends only to “in-
formation furnished by an applicant pursuant to the applica-
tion, or any other information derived from the application,
that is not available from any other source.” Id.
§ 1255a(c)(5)(D)(i).
Torres was issued a Form I-688 Temporary Resident card
on March 4, 1988. Under IRCA, Torres had until September
30, 1991 to file a permanent-residence application. 8 U.S.C.
§ 1255a(b)(1)(A). On August 30, 1993, five years after
receiving his temporary-resident status, Torres went to the
San Francisco office of the (former) Immigration and Natural-
ization Service to inquire about his permanent-residence
application. He filled out a form entitled “Notice of Appeal of
Decision under Section 210 or 245A of the Immigration and
1
Originally, an alien had only 31 months to apply for permanent resi-
dence, but this period was retroactively extended an additional 12 months.
See Pub. L. No. 101-649 § 703, 104 Stat. 4978, 5086 (1990); One-Year
Extension of Deadline for Filing Applications for Adjustment From Tem-
porary to Permanent Residence for Legalized Aliens, 56 Fed. Reg. 31060
(Jul. 9, 1991).
6770 TORRES-CHAVEZ v. HOLDER
Nationality Act,” on which he listed his name, address, and
alien registration number (“A-number”). He also wrote, in
Spanish, that he had hired a lawyer and “thought he had sub-
mitted the application but it was not the case.” Torres claims
he never received a response to this inquiry. INS records
reflect that Torres’s permanent-residence application was
denied as untimely on August 18, 1995.
On March 28, 2003, eight years after his visit to the INS’s
San Francisco office, Torres went to the INS office in Reno,
Nevada. There he submitted a handwritten “INQUIRY/
REQUEST” form, in which he wrote, in English, “I need to
know where my work card is. Can someone please check on
it.” Unlike the “Notice of Appeal of Decision under Section
210 or 245A of the Immigration and Nationality Act” submit-
ted to the INS in 1993, this inquiry did not refer to section
245A or indicate that Torres’s inquiry concerned his applica-
tion for permanent residence. Upon determining that Torres
was in the country unlawfully, INS agents arrested Torres and
personally served him with a notice to appear (NTA).
Torres appeared before the IJ on September 24, 2003. He
was represented by an attorney, Steven Brazelton. During that
hearing, Brazelton, on behalf of Torres, admitted the factual
allegations in the NTA (including the fact that Torres was an
alien) and conceded that Torres was removable. Brazelton
then informed the IJ that Torres would be seeking cancella-
tion of removal and requested a continuance to submit the
application. The IJ set an application filing date of January 23,
2004 and a hearing date of February 2, 2004.
Torres never filed an application for cancellation of
removal. Instead, on December 30, 2003, Torres moved to
withdraw the factual admissions and concession of removabil-
ity that he had made at the March 28, 2003 hearing, on the
ground that Brazelton had provided ineffective assistance of
counsel. (This motion was filed by Brazelton, who has contin-
ued to represent Torres since then, including before this
TORRES-CHAVEZ v. HOLDER 6771
court.) Torres argued that he would never have admitted he
was an alien had Brazelton informed him of his “right to
remain silent” regarding his alienage. Torres also moved to
“suppress all evidence obtained by the government in relation
to [Torres’s] applications for residency under section 245A of
the Immigration and Nationality Act,” based on section
245A’s confidentiality provision covering materials submitted
“pursuant to” a residency application. The IJ denied both
motions on January 15, 2004. Torres then unsuccessfully
attempted to take an interlocutory appeal to the BIA.
On February 2, 2004, Torres appeared before the IJ. Torres
renewed both motions, and the IJ heard arguments by the par-
ties. Torres testified that he went to the INS office in Reno to
inquire about his “amnesty case.” He refused to answer the
government’s questions regarding his alienage, and again
argued that all documents in the record establishing alienage
were submitted as part of his permanent-residence application
under section 245A of the INA, 8 U.S.C. § 1255a. The IJ
ruled against Torres. Rejecting Torres’s claim that Brazelton
rendered ineffective assistance of counsel when he conceded
Torres’s removability at the September 24th hearing, the IJ
held that, “whether for tactical or strategic reasons, counsel
for the respondent elected to admit and concede” removability
and the factual allegations in the NTA. The IJ also denied
Torres’s renewed motions to suppress his factual admissions
and concession of removability, holding that Torres’s two
inquiries to the INS, as well as the evidence contained in the
NTA, did not “relate” or “pertain[ ]” to a permanent-residence
application under section 245A, and were therefore not cov-
ered by that section’s confidentiality provision. Accordingly,
the IJ ordered Torres removed.
The IJ’s order of removal became final on March 21, 2005,
the date on which the BIA affirmed the IJ’s decision. See 8
U.S.C. § 1101(a)(47)(B). Torres timely filed his petition for
review within thirty days, on April 18, 2005, giving us juris-
diction over his petition for review under 8 U.S.C.
6772 TORRES-CHAVEZ v. HOLDER
§ 1252(b)(1). “Questions of law, as well as claims of due pro-
cess violations, are reviewed de novo.” Hernandez v.
Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008).
II
On appeal, Torres claims that none of his admissions of
alienage were admissible and that the government therefore
failed to meet its burden of proving that he is an alien. He
argues that his admission of alienage before the IJ should be
suppressed as the product of ineffective assistance of counsel
and that his written and oral admissions to the INS were inad-
missible under the confidentiality provision in section 245A.
[1] We begin by considering Torres’s ineffective-
assistance-of-counsel claim. We have explained that “removal
proceedings are civil,” Lara-Torres v. Ashcroft, 383 F.3d 968,
973 (9th Cir. 2004), and that litigants “in removal proceedings
have no Sixth Amendment right to counsel,” Nehad v.
Mukasey, 535 F.3d 962, 967 (9th Cir. 2008). Nevertheless, we
have held that aliens’ counsel can “be so ineffective as to
deprive them of their Fifth Amendment right to due process
of law.” Id. Specifically, we have held that an alien’s right to
due process can be violated by “egregious conduct that threat-
ens the fairness of the proceeding,” including egregiously
deficient performance by the alien’s lawyer. Id. at 971;
accord Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th
Cir. 1986). Therefore, in assessing an attorney’s performance,
“[t]he proper focus of our inquiry is whether the proceeding
is so fundamentally unfair that the alien is prevented from rea-
sonably presenting her case.” Lara-Torres, 383 F.3d at 974
(citation and internal quotation marks omitted). An alien must
also show “substantial prejudice” by demonstrating that “the
alleged violation affected the outcome of the proceedings.” Id.
at 973.
[2] Although aliens “shoulder a heavier burden of proof” in
establishing ineffective assistance of counsel under the Fifth
TORRES-CHAVEZ v. HOLDER 6773
Amendment than under the Sixth Amendment, Magallanes-
Damian, 783 F.2d at 933, we may begin our analysis within
the Sixth Amendment framework established by Strickland v.
Washington, 466 U.S. 668 (1984). See, e.g., Hernandez, 524
F.3d at 1017; Matter of Velasquez, 19 I. & N. Dec. 377, 382
(1986). If an attorney’s performance passes muster under Str-
ickland, it cannot render an alien’s proceeding fundamentally
unfair. In other words, there is no violation of the alien’s Fifth
Amendment right to due process if the alien’s counsel was
effective for Sixth Amendment purposes.
[3] Under Strickland, a criminal defendant’s counsel may
be deemed ineffective only if counsel’s performance falls out-
side “the wide range of reasonable professional assistance.”
466 U.S. at 689. Our “scrutiny of counsel’s performance must
be highly deferential,” and “the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. (internal
quotation marks omitted). In particular, we must “evaluate the
conduct from counsel’s perspective at the time,” taking care
not to view a lawyer’s decisions in “the distorting effects of
hindsight,” and bearing in mind that defendants are generally
bound by the “strategic” and “tactical” admissions and con-
cessions made by their lawyers. Id. at 689-90. “Because advo-
cacy is an art and not a science, and because the adversary
system requires deference to counsel’s informed decisions,
strategic choices must be respected in these circumstances if
they are based on professional judgment.” Id. at 681.
Torres claims that Brazelton’s performance was deficient
under Strickland because Brazelton conceded Torres’s alien-
age and failed to inform Torres about the advantages of
remaining silent. Torres contends that his prior communica-
tions with the INS were confidential under section 245A, and
thus the government could not have used any evidence of
alienage contained in those communications at the hearing. At
a minimum, Torres claims, there was a possibility that a
motion to suppress such evidence would have been granted
6774 TORRES-CHAVEZ v. HOLDER
(or eventually would have been successful on appeal to the
BIA or petition for review to this court). If such a motion had
been successful, Torres argues, the government would have
lacked the evidence necessary to carry its burden of proving
that Torres was an alien by “clear, unequivocal, and convinc-
ing evidence.” Woodby v. INS, 385 U.S. 276, 286 (1966). Tor-
res’s silence at the hearing would not have availed the
government, because an alien’s refusal to concede alienage
does not itself “establish a prima facie case of alienage, suffi-
cient to shift the burden of proof to the respondent.” Matter
of Guevara, 20 I. & N. Dec. 238, 242 (BIA 1991). Accord-
ingly, Torres argues, there was no strategic or tactical reason
for Brazelton to concede Torres’s alienage before the IJ. Tor-
res also argues that Brazelton’s “failure to advise [Torres] of
his right to remain silent indicates that [Torres’s] pleadings
were neither knowing nor voluntary,” analogizing to with-
drawals of guilty pleas under Rule 11 of the Federal Rules of
Criminal Procedure.
[4] We disagree. Even if we assume that Torres may claim
that Brazelton’s services were ineffective while continuing to
rely on Brazelton’s services to raise that very claim, his argu-
ment fails because Brazelton’s representation of Torres did
not fall outside the wide range of reasonable representation.
A lawyer in Brazelton’s position could have reasonably made
the tactical decision to concede his client’s alienage. As noted
above, Torres’s inquiry regarding his “work card” on March
28, 2003 listed Torres’s A-number and his place of birth as
Mexico City, thus providing evidence of Torres’s alienage.
Brazelton had no assurance that he would be able to argue
successfully that this inquiry was subject to section 245A’s
confidentiality provision. To begin with, Torres has not cited,
nor have we found, any case or authoritative agency interpre-
tation directly addressing whether section 245A’s confidenti-
ality provision extends to inquiries that on their face provide
no indication that they are “pursuant to an application” filed
under that section. Moreover, even if section 245A’s confi-
dentiality provision does extend to any inquiry that an alien
TORRES-CHAVEZ v. HOLDER 6775
subjectively intended as a follow-up to a section 245A appli-
cation, Brazelton had no assurance that the finder of fact
would ultimately conclude that Torres had the necessary
intent. Indeed, as it turned out, the IJ found that Torres’s
March 28, 2003 inquiry did not pertain to an application
under section 245A of the INA. Finally, even though a refusal
to deny alienage, standing alone, is insufficient to meet the
government’s burden of proving alienage, it can still provide
a basis for an “adverse inference” that an alien is “not legally
in this country.” Cabral-Avila v. INS, 589 F.2d 957, 959 (9th
Cir. 1978); accord Matter of Guevara, 20 I. & N. Dec. at 241.
[5] In sum, given the lack of certainty as to whether Tor-
res’s March 28, 2003 inquiry was admissible in the immigra-
tion hearing, along with the risks of remaining silent,
Brazelton could have reasonably decided to concede Torres’s
alienage and seek affirmative relief for his client rather than
pursue a motion to suppress. See Knowles v. Mirzayance, 556
U.S. ___, 129 S. Ct. 1411, 1422 (2009) (“Counsel also is not
required to have a tactical reason—above and beyond a rea-
sonable appraisal of a claim’s dismal prospects for success—
for recommending that a weak claim be dropped altogether.”).
Brazelton’s initial approach, as he informed the IJ at the Sep-
tember 24th hearing, was to seek cancellation of removal, and
focusing the court’s attention on a particular basis for relief is
a legitimate reason to concede removability. See Rodriguez-
Gonzales v. INS, 640 F.2d 1139, 1142 (9th Cir. 1981). We
cannot say, on the record before us, that Brazelton’s perfor-
mance was so deficient that it fell outside “the wide range of
reasonable professional assistance” described in Strickland.
466 U.S. at 689.
[6] Because Brazelton’s representation did not constitute
ineffective assistance of counsel under the Sixth Amendment,
it did not deprive Torres of his Fifth Amendment right to due
process of law. Indeed, wholly aside from Strickland and the
Sixth Amendment, Brazelton’s conduct came nowhere close
to constituting the sort of “egregious conduct” that would
6776 TORRES-CHAVEZ v. HOLDER
“threaten[ ] the fairness of the proceeding” and deprive Torres
of his Fifth Amendment right to due process. Nehad, 535 F.3d
at 971. As we have explained, “ineffective assistance of coun-
sel in a deportation hearing results in a denial of due process
under the Fifth Amendment only when the proceeding is so
fundamentally unfair that the alien is prevented from reason-
ably presenting her case.” Hernandez, 524 F.3d at 1017;
accord Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003).
Torres was not deprived of any opportunity to be heard, pre-
sent evidence, or “press [his] case fully.” Lara-Torres, 383
F.3d at 975. Torres simply conceded that he was an alien, a
fact that he has never suggested is untrue. Torres has not
pointed us to any authority for the proposition that voluntarily
conceding a true fact can fundamentally undermine the fair-
ness of a proceeding, nor are we aware of any. To the con-
trary, the process that Torres was due is “intended to provide
a streamlined determination of eligibility to remain in this
country,” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039
(1984), and that is the process he received.
III
[7] Because Torres was not deprived of due process by the
conduct of his lawyer, he is bound to his admissions of alien-
age and removability before the IJ. We therefore need not
address whether Torres’s written and oral admissions to the
INS were admissible in Torres’s removal proceedings under
the confidentiality provision in section 245A, 8 U.S.C.
§ 1255a(c)(5)(A)(i). Torres’s petition for review is DENIED.