Ricardo Sanchez v. Jefferson B. Sessions III
Opinion
*860 Ricardo Sanchez seeks review of an order of the Board of Immigration Appeals denying his motion to reopen its prior decision denying him discretionary cancellation of removal. See 8 U.S.C. § 1229b(1). Because Sanchez's petition presents questions of law, we have jurisdiction to review the Board's order and, for the reasons that follow, we grant his petition and remand to the Board for further proceedings.
I.
Sanchez, aged 44, is a native and citizen of Mexico who has lived in the United States without documentation for more than 25 years. He is married to another Mexican citizen and national (also undocumented) who lives here in the United States with him; together, they have three U.S.-citizen children aged nine, seven, and two and one-half years. Their youngest child has experienced developmental delays in his motor skills and has been prescribed therapy to address those delays.
Sanchez has been arrested and convicted for driving under the influence on four separate occasions between 1997 and 2013. In December 2013, after receiving a one-year suspended sentence for the last of his convictions, Sanchez was apprehended by immigration officials and served with a notice to appear in a removal proceeding for being in the country illegally.
See
Sanchez subsequently admitted the facts set forth in the notice to appear and conceded his removability; but he applied for cancellation of removal on the basis of the extraordinary hardship that he believed his removal would cause to his two children (at that time his youngest had not yet been born). An immigration judge conducted a hearing on the merits of his application at which Sanchez was the sole witness. Sanchez was represented by counsel at the hearing.
In an oral decision, the immigration judge denied Sanchez's application for cancellation of removal and ordered him removed to Mexico. A.R. 368, 369-81. The judge found in the first instance that Sanchez lacked the "good moral character" that is a prerequisite to cancellation of removal, see 8 U.S.C. § 1229b(b)(1)(B), in view of, inter alia , Sanchez's multiple DUI convictions as well as his decision to ignore court orders to appear and respond to two of the DUI charges, which resulted in multi-year delays in resolving those cases. (Sanchez testified that he failed to appear out of fear he would be deported.). A.R. 376-78. The judge also found, in the alternative, that Sanchez had "simply failed to put a case forward" for the notion that his removal from the country would impose an "exceptional and extremely unusual hardship" upon his children. A.R. 379; see § 1229b(b)(1)(D). Sanchez had presented no testimony regarding his sons, including any medical or educational needs they might have, nor was it even clear whether his family would accompany him to Mexico in the event of his removal. A.R. 379-80. Finally, and also in the alternative, the judge concluded that even if Sanchez qualified for cancellation of removal, he did not merit that discretionary relief. The judge identified as positive factors the presence of Sanchez's spouse and children in the United States and the financial support he provided to his family members in Mexico. Sanchez had a history of steady employment and had testified that he paid taxes, but the judge pointed out that there was nothing in the record to show that he had ever filed an income tax return. On balance, the judge found that the factors supporting Sanchez's request for cancellation were insufficient to outweigh his history of disregarding traffic and safety laws, as *861 evidenced by his multiple DUI convictions. A.R. 379-80.
Sanchez, represented by new counsel, unsuccessfully appealed the adverse decision to the Board. Sanchez argued both that the Immigration Judge erred on the merits of his application for cancellation of removal and that his previous attorney had been ineffective in preparing him to testify and in presenting his application. The Board declined to reach the ineffectiveness claim, noting that Sanchez had not submitted the evidentiary materials that
Matter of Lozada
,
Sanchez filed a motion asking the Board to both reconsider and reopen its decision, but the Board again denied him relief. Sanchez endeavored to correct the Lozada problem with his ineffectiveness claim by attempting to fill in the gaps in his supporting materials. He further argued that it was his prior counsel's ineffectiveness that prevented him from presenting evidence that would establish his good moral character and demonstrate the extraordinary hardship his removal would pose to his children. The Board rejected Sanchez's request to reconsider its finding that his ineffectiveness claim failed in the first instance to satisfy Lozada , noting that at the time of its prior decision, Sanchez in fact had not complied with Lozada . A.R. 3. As for the motion to reopen, the Board acknowledged Sanchez's belated effort to comply with Lozada . A.R. 4. But as to the merits of the ineffectiveness claim, the Board concluded that Sanchez had not shown that he was prejudiced by any ineffectiveness on the part of his prior counsel. The Board noted that its prior order had focused on the lack of proof that Sanchez's removal would impose the requisite degree of hardship on his children, so the Board confined its analysis of prejudice to that one aspect of Sanchez's request for cancellation of removal. A.R. 4. And as to that component, the Board indicated it was not convinced that the evidence Sanchez faulted his attorney for failing to present "would likely have altered the outcome of [Sanchez's] case with regard to the hardship that would accrue to his children" in the event of his removal. A.R. 4.
Sanchez then filed his petition to review the Board's decision.
II.
Sanchez presses two arguments in his challenge to the Board's decision denying his motion to reopen: (1) that the Board assessed his ineffective-assistance-of-counsel claim using the wrong legal standard as to the prejudice component of that claim; and (2) the Board engaged in such a cursory analysis of his ineffectiveness claim, devoid of reason and essentially ignoring *862 the evidence he presented in support of that claim, that its decision amounts to an abuse of discretion. 2 Because we agree with Sanchez as to the first of these arguments, we need not reach the second.
Before turning to the merits of Sanchez's appeal, however, we must pause to consider our jurisdiction. As a general matter, whether to grant Sanchez cancellation of removal is a discretionary decision that is beyond our jurisdiction to review.
E.g.
,
Perez-Fuentes v. Lynch
,
Sanchez asked the Board to reopen its prior ruling denying him cancellation of removal on the ground that the attorney who represented him before the Immigration Judge deprived him of the effective assistance of counsel. Although Sanchez did not have a Sixth Amendment right to effective representation by counsel in the removal proceeding, he did have a Fifth Amendment due process right to a fair hearing; and if his counsel's asserted errors resulted in a proceeding that was so unfair as to have precluded Sanchez from reasonably presenting his case, then he was deprived of due process.
See
Zambrano-Reyes v. Holder
,
Without reaching the question of whether Sanchez's former counsel was, in fact, ineffective, the Board concluded that Sanchez had failed to show that he was prejudiced by any shortcomings in his attorney's performance. Again, in the Board's words, it was "not persuaded that the evidence offered in support of [Sanchez's] ineffective assistance of counsel claim would have likely altered the outcome of this case with regard to the hardship that would accrue to his children." A.R. 4.
The Board's language indicates that it applied the wrong standard in evaluating the prejudice component. As Sanchez rightly puts it, the standard as the Board articulated it is one of probability, when the correct standard as we have articulated is one of possibility. The difference between the two is material. The Board's "would likely have altered the outcome" language suggests that it was requiring Sanchez to show it was more likely than not (
i.e.
, a probability of more than 50 percent) that the outcome of the removal proceeding would have been favorable to Sanchez but for his counsel's alleged missteps. But in actuality, Sanchez needed only to establish that he would have had a reasonable chance of prevailing had his counsel provided him with competent representation.
See
Strickland v. Washington
,
The government points to certain language from some of our own attorney-ineffectiveness and other due process cases which could be read as being consistent with the language that the Board used here and which, to the government's mind, suggests that the two different formulations of the standard are interchangeable. For the most part, however, these cases accurately recognize that the prejudice standard for due process claims connotes the possibility rather than the probability of a different result.
See
,
e.g.
,
Silais v. Sessions
,
*864
(emphasis added) (quoting
El-Gazawy
,
By contrast, taking the Board's order in this case at face value, we cannot be confident it applied the correct prejudice standard in a manner consistent with our precedents. Although the Board cited (and parenthetically quoted from)
Bathula
for the proper standard, in the one and only sentence of the Board's order actually analyzing prejudice, the Board's own words held Sanchez to the higher burden of showing that his attorney's alleged ineffectiveness "would likely have altered the outcome" of the case. A.R. 4. That is an incorrect formulation of the prejudice standard, and neither
Bathula
nor any other precedent from this court genuinely supports that formulation. The Board's language suggests that it did not appreciate the difference between requiring proof of a possibility rather than the probability of a different outcome. Indeed, the Board used essentially the same language when it separately evaluated Sanchez's new-evidence claim, as to which Sanchez indeed bore the "heavy burden" of showing that the evidence in question would likely have produced a different result.
See
A.R. 4, citing
Matter of Coelho
,
As it is the Board that has the authority to decide whether to reopen its prior decision on the question of cancellation of removal, the appropriate remedy for the error is to remand this matter to the Board for reconsideration in light of the correct prejudice standard.
*865 In view of our decision to remand, we need not address Sanchez's second argument as to the Board's failure to address his evidence and articulate a rationale for its conclusion that Sanchez had not established prejudice resulting from his attorney's performance. We have every confidence that the Board will rectify any such shortcoming when it re-evaluates Sanchez's ineffectiveness claim applying the correct standard as to prejudice.
III.
For all of the foregoing reasons, the petition for review is GRANTED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.
Lozada
requires: (1) that the motion be supported by an affidavit from the respondent setting forth in detail the agreement that he entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in that regard; (2) that counsel be informed of the allegations leveled against him and be given an opportunity to respond; and (3) that the motion reflect whether a complaint has been filed with the appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not.
Sanchez has not challenged the Board's denial of Sanchez's motion to reconsider its prior ruling issue. Only the denial of his motion to reopen is at issue in this appeal.
Because we have jurisdiction to consider the legal questions presented by Sanchez's petition, we need not consider whether the Supreme Court's decision in
Mata v. Lynch
, --- U.S. ----,
Reference
- Full Case Name
- Ricardo SANCHEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
- Cited By
- 16 cases
- Status
- Published