Gonzalez v. Holder

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 02 2010

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

SUSANA VIRGINIA GONZALEZ, No. 07-74351

Petitioner, Agency No. A070-778-918

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted September 10, 2009**
San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

Susana Virginia Gonzalez entered the United States and applied for asylum

in 1993. In a 2004 removal hearing, under pressure from the immigration judge,

Gonzalez’s attorney waived the asylum claim without her consent, admitting that

he was not prepared to represent the claim. The Board of Immigration Appeals

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denied the motion to remand, concluding that counsel’s performance was not

deficient and that Gonzalez did not suffer prejudice due to changed conditions.

We have jurisdiction under 8 U.S.C. § 1252(a). We hold that Gonzalez’s

due process rights were violated by her attorney’s ineffective assistance and that

her asylum claim was prejudiced. We remand to the Board of Immigration

Appeals with instructions to remand for an asylum hearing.

Gonzalez’s attorney rendered ineffective assistance by withdrawing the

asylum claim solely because he was unprepared.1 When the immigration judge

ordered counsel to defend the asylum claim that day or waive it, the attorney

replied, “I’m not prepared today, Your Honor. We will not do it today.” An

immigration attorney renders ineffective assistance by forfeiting claims due to

failure to timely prepare for deadlines or hearings. See Lin v. Ashcroft, 377 F.3d

1014, 1025 (9th Cir. 2004); Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003).

1
Gonzalez sufficiently complied with Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988). Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) (requiring
substantial compliance). First, Gonzalez wrote to her attorney and gave him an
opportunity to respond to her allegations. Second, Gonzalez filed a complaint with
the California Bar; the complaint need not be successful. Third, Gonzalez filed a
declaration with her appeal to the Board stating that she never authorized her
attorney to withdraw her asylum claim. It was clear from the record that counsel
had agreed to represent her on the asylum claim. Counsel stated to the
immigration judge that he intended to proceed with the asylum application if the
cancellation of removal application was denied. This constitutes substantial
compliance. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002).

2
As Gonzalez’s attorney admitted that he only waived the claim because he was

unprepared, it is clear that the waiver was not “‘trial strategy,’ sound or otherwise.”

Lin, 377 F.3d at 1027. By definition, waiving the claim deprived Gonzalez of a

reasonable opportunity to present her claim. “Counsel’s unreasonable failure to

investigate and present the factual and legal basis of [Gonzalez’s] asylum claim . . .

amount[s] to ineffective assistance of counsel.” Id. at 1025.

Gonzalez has also established prejudice. The Board of Immigration Appeals

must address both possible grounds for asylum: past persecution and a well-

founded fear of future persecution. See Mendez-Gutierrez v. Ashcroft, 340 F.3d

865, 870 (9th Cir. 2003) (holding that in failing to address the petitioner’s claim of

a well-founded fear of future persecution, the Board abused its discretion). The

Board wholly failed to address whether Gonzalez could plausibly show past

persecution. Instead, the Board appeared to assume Gonzalez could establish past

persecution and relied only on changed conditions in Guatemala after the end of

the civil war. The Board stated, “[W]e do not find an adequate showing of

prejudice, as the respondent has not sufficiently established that her approximately

14 year old asylum claim has any continuing merit.” (emphasis added).

If the Board had considered past persecution, it would likely have concluded

(as it appeared to assume) that Gonzalez can plausibly show past persecution on

3
the basis of political opinion. Gonzalez’s brother was killed in the Guatemala Civil

War because the guerillas forced him to desert the government’s civil defense unit.

Her father-in-law was killed by guerillas. The guerillas also threatened Gonzalez

and her husband with death for her husband’s service in the civil defense unit. Her

brother’s and father-in-law’s murders show that it was likely the death threats

would be carried out. See Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996) (“The

violence actually committed against other members of [the petitioner’s] family,

and repetition of threats to her, made her fear of violence well founded.”).

Without addressing whether Gonzalez had shown a plausible claim of past

persecution, the Board could not permissibly rely on changed country conditions in

Guatemala. Past persecution creates a presumption of a well-founded fear of

future persecution, which can only be rebutted by an individualized analysis:

“[Determining] whether . . . a particular applicant’s fear is rebutted by general

country conditions information requires an individualized analysis that focuses on

the specific harm suffered and the relationship to it of the particular information

contained in the relevant country reports. . . . Information about general changes in

the country is not sufficient.” Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000).

Where no individualized determination has been made with respect to

changed country conditions, we must usually remand to the Board for a

4
determination of whether the government has met its burden to rebut the

presumption of past persecution. See Chand, 222 F.3d at 1078. However, in this

case, remand to the immigration judge is necessary because neither we nor the

Board may take judicial or administrative notice of the effect of political changes

in a petitioner’s country without a hearing and giving the petitioner “a fair

opportunity to present evidence to the contrary.” See Gonzalez, 82 F.3d at 910–11

(“It may be that, were the petitioners given an opportunity to respond to the INS

view of the effect of the change in government, they could make no case for a well-

found fear. . . . But the agency should not have assumed away petitioners’ case.”)

(internal quotation marks omitted). Likewise, remand is necessary because

Gonzalez was never allowed to testify or elaborate as to the persecution she and

her family faced in Guatemala, and the immigration judge never determined

whether Gonzalez was credible. Most importantly, Gonzalez was not given the

chance to show that the danger to her remains despite the end of the Guatemala

Civil War. “Remand [to the immigration judge] is generally necessary when an

alien is prevented from reasonably presenting her case or when an IJ’s actions

prevent the introduction of significant testimony.” Cruz Rendon v. Holder, 603

F.3d 1104, 1109 (9th Cir. 2010).

5
The petition for review is GRANTED, and we REMAND the case to the
BIA with instructions to remand to the IJ for an asylum hearing.