Luis Guillermo Pieschacon Quijano v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 11-10762 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
MARCH 12, 2012
________________________
JOHN LEY
CLERK
Agency No. A087-342-641

LUIS GUILLERMO PIESCHACON QUIJANO,
MARIA CECILIA PARRA LOPEZ,
GABRIELA PIESCHACON PARRA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

__________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(March 12, 2012)

Before PRYOR, MARTIN, and KRAVITCH, Circuit Judges.

PER CURIAM:
Luis Guillermo Pieschacon Quijano (“Pieschacon”), his wife Maria Cecilia

Parra Lopez, and his daughter Gabriela Pieschacon Parra appeal pro se from the

Board of Immigration Appeals’s (“BIA”) final order denying Pieschacon’s

application for asylum under 8 U.S.C. § 1158(a), withholding of removal under 8

U.S.C. § 1231(b)(3), and withholding of removal under the United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”), 8 C.F.R. § 208.16(c). Pieschacon claims that, if deported to

his native Colombia, he would face persecution by the Revolutionary Armed

Forces of Colombia (“FARC”) on account of his past anti-guerrilla political

activism and neo-liberal political beliefs.

On appeal, Pieschacon not only challenges the merits of the BIA’s decision

regarding the timeliness of his application and his eligibility for asylum. But he

also claims the BIA ignored his two arguments for why his due process rights

were violated during the removal proceedings. We hold that the BIA properly

rejected the first of these due process arguments, alleging bias in the way the

Immigration Judge (“IJ”) conducted the proceedings. However, upon review of

the record and after careful consideration of the parties’ briefs, we conclude that

the BIA erred by failing to address Pieschacon’s other due process claim,

specifically, that his former counsel rendered ineffective assistance. As a result,

2
we are unable to review this issue properly. And in light of the reasonable

possibility that Pieschacon was substantially prejudiced by the ineffective

assistance of his former counsel, we remand for further proceedings.

This court reviews only the BIA’s decision, except to the extent that it

expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). We review constitutional challenges, including alleged due

process violations, de novo. Lapaix v. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.

2010).

“Due process requires that aliens be given notice and an opportunity to be

heard in their removal proceedings.” Id. “In order to establish a due process

violation, an alien must show that he was deprived of liberty without due process

of law, and that the asserted error caused him substantial prejudice.” Gonzalez-

Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003) (citations

omitted). “To show substantial prejudice, an alien must demonstrate that, in the

absence of the alleged violations, the outcome of the proceeding would have been

different.” Lapaix, 605 F.3d at 1143.

Pieschacon contends that his due process rights were violated because the IJ

conducted the proceedings in a biased manner. He asserts that the IJ exhibited

3
bias by ignoring record evidence and basing his adverse-credibility determination

on selective excerpts from the record, as well as by his allegedly “intimidating,”

“hostile,” and “sarcastic” conduct during the hearing.

However, because the record reflects that Pieschacon was given a full

opportunity to testify and be heard on his claims for relief, we hold that his due

process rights were not violated during his removal hearing. Pieschacon had

multiple opportunities to challenge the charges against him, present evidence and

argue his case, and appeal the final adverse immigration determination. Also,

many of the comments and instructions that Pieschacon refers to, including the IJ’s

request that he shorten the addendum to his application, provide details about the

exhibits that he submitted, and confine his answers to his attorney’s questions,

appear to have been aimed at focusing the proceedings and excluding irrelevant or

unreliable evidence. Pieschacon has not shown that this conduct substantially

prejudiced him. Beyond this, we have found no evidence that the IJ excluded

Pieschacon from testifying about claims that he raised in his asylum application.

The IJ’s questions about whether Pieschacon needed to be a U.S. citizen in

order to obtain a real estate license and about his knowledge of § 245(i) may have

been unnecessary. Nonetheless, this conduct falls short of demonstrating that the

IJ was biased against Pieschacon. Thus, because Pieschacon was given an

4
opportunity to be heard in his removal proceedings, and because there is an

insufficient basis to conclude that the IJ’s conduct substantially prejudiced him,

we hold that the IJ’s conduct did not violate Pieschacon’s due process rights. See

id.

II.

Stemming from their right to a fundamentally fair hearing under the due

process clause of the Fifth Amendment, aliens have a right to effective assistance

of counsel in civil deportation proceedings. Dakane v. U.S. Att’y Gen., 399 F.3d

1269, 1273 (11th Cir. 2005). “To establish the ineffective assistance of counsel in

the context of a deportation hearing, an alien must establish that his or her

counsel’s performance was deficient to the point that it impinged the fundamental

fairness of the hearing.” Ali v. U.S. Att’y Gen., 643 F.3d 1324, 1329 (11th Cir.

2011) (quotation marks and alterations omitted). The alien must also establish

prejudice, which “exists when the performance of counsel is so inadequate that

there is a reasonable probability that but for the attorney’s error, the outcome of

the proceedings would have been different.” Id. (quoting Dakane, 399 F.3d at

1274).

The record reflects that Pieschacon, proceeding pro se, adequately raised a

claim before the BIA that his attorney rendered ineffective assistance during his

5
removal proceedings. Specifically, in his brief appealing the IJ’s decision,

Pieschacon asserted that he “did not have a good defense by [his] lawyer, because

[the lawyer] didn’t insist to show the evidence at the hearing or the events

experienced by [Pieschacon],” and that his attorney was negligent for failing to

submit evidence on time. Even if the presentation of this ineffective-assistance-

of-counsel claim may have lacked the clarity and depth that we typically demand,

we have long embraced the principle that pro se briefs should be construed

liberally. Gomez-Diaz v. United States, 433 F.3d 788, 791 (11th Cir. 2005)

(emphasizing that “we must construe” the ineffective-assistance-of-counsel

pleadings of a pro se petitioner “liberally”); Lorisme v. INS, 129 F.3d 1441, 1444

n.3 (11th Cir. 1997) (“We read liberally briefs filed pro se.”). We therefore

recognize that Pieschacon raised an ineffective-assistance-of-counsel claim before

the BIA that merited its “reasoned consideration.” Ayala v. U.S. Att’y Gen., 605

F.3d 941, 948 (11th Cir. 2010).

Yet, the BIA’s decision did not even address Pieschacon’s ineffective-

assistance-of-counsel claim, let alone give the claim “reasoned consideration.” As

a result, we are unable to review this issue. See id. (explaining that when the BIA

“has failed to give reasoned consideration or make adequate findings” in

addressing a petitioner’s claims, “we are unable to review the decision”). We

6
recognize that the BIA is not required to specifically address each claim that a

petitioner makes or each piece of evidence that a petitioner presents, provided that

it has considered the issues raised and announced its decision in terms sufficient to

enable a reviewing court to perceive that it has “heard and thought and not merely

reacted.” Id. (quoting Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir.

2006)). But, in this case, there is simply no evidence that the BIA ever reviewed

the issue.

Were it clear that Pieschacon had not suffered any prejudice as a result of

the alleged ineffective assistance of his former counsel, we might set this due

process claim aside and proceed to consider Pieschacon’s remaining claims. Cf.

Dakane, 399 F.3d at 1275 (affirming the BIA’s denial of petitioner’s motion to

reopen based on ineffective assistance of counsel because that motion failed to

address how non-deficient assistance would have changed the BIA’s removal

proceeding). But in rejecting Pieschacon’s arguments regarding the timeliness of

his application and his eligibility for asylum, the BIA specifically pointed to the

insufficiently detailed nature of Pieschacon’s testimony, the failure to adequately

substantiate the evidence and connect it to Pieschacon’s claims, and the failure to

provide sufficient corroborative evidence. These are all precisely the issues that

would be expected to arise if Pieschacon’s allegations of ineffective assistance of

7
counsel were true—that is, if counsel had failed to prepare for the case, failed to

elicit relevant facts from Pieschacon’s testimony, and failed to submit key

evidence to the court in a timely manner. This indicates “there is a reasonable

possibility that but for the attorney’s error, the outcome of the proceedings would

have been different.” Id. at 1274. In light of the fact that the BIA has yet to

review this critical issue, we follow the Supreme Court’s direction in concluding

that “the proper course . . . is to remand to the agency for additional investigation

or explanation.” INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002).

The government urges us in a footnote to set aside this issue because

Pieschacon has not complied with the requirements that the BIA adopted in Matter

of Lozada, 19 I. & N. Dec. 637 (BIA 1988), for making out an

ineffective-assistance-of-counsel claim. However, as we emphasized above, the

BIA's decision did not address the ineffective-assistance-of-counsel claim, let

alone Pieschacon's compliance with the BIA’s decision in Lozada. Remand thus

enables the BIA to apply its institutional expertise and, if necessary, to clarify

whether Pieschacon met the requirements set forth in Lozada.1

1
We note that Calle v. U.S. Att’y Gen., 504 F.3d 1324 (11th Cir. 2007), has recognized
an exception to the ordinary remand rule in “rare circumstances” where the undecided question
involves a purely legal issue that is procedural in nature. Id. at 1330. However, the government
neither references Calle in its brief nor discusses whether the Lozada requirements are so non-
factual and procedural in nature that Calle would even control. For these reasons, we do not
consider here the scope of Calle or whether it applies to the Lozada requirements.

8
We therefore remand the case for further proceedings consistent with this

opinion. In doing so, we decline to address at this time Pieschacon’s other claims

regarding the timeliness of his application, his eligibility for asylum and

withholding of removal, and the BIA’s adverse-credibility finding.

PETITION DENIED IN PART, GRANTED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.