Lopez-Lopez v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN PEDRO LOPEZ-LOPEZ, No. 22-1531 Agency No. Petitioner, A091-929-235 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted August 24, 2023 Seattle, Washington

Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges.

Petitioner and lawful permanent resident (“LPR”) Juan Pedro Lopez-Lopez

(“Lopez”) seeks review of an order of the Board of Immigration Appeals (“BIA”)

denying his motion to reopen removal proceedings that terminated in 2013. Lopez

argues the BIA abused its discretion by declining to toll the reopening deadline

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. because of ineffective assistance of counsel. Because we conclude the BIA

committed legal error in analyzing the prejudice from counsel’s assumed

ineffectiveness, we grant the petition in part and remand for further proceedings.

Lopez’s counsel conceded that his 1996 criminal conviction was an

aggravated felony and grounds for removal. The BIA majority assumed this

concession was ineffective, but concluded Lopez did not demonstrate prejudice from

it. The BIA concluded (1) that Lopez did not point to a case conclusively stating

that violations of California Health & Safety Code § 11352 were categorically not

an aggravated felony, and (2) that Lopez was not prejudiced because the government

could have reinstated a prior removal order relating to a charge that was not alleged

in the Notice to Appear (“NTA”).

This analysis constituted legal error in evaluating the prejudice that flowed

from counsel’s error. In evaluating ineffective assistance claims, the court is to

consider the prejudice that flowed from counsel’s error—to “consider the underlying

merits of the case to come to a tentative conclusion as to whether [petitioner’s] claim,

if properly presented, would be viable.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th

Cir. 2004). Petitioner can show prejudice if counsel’s deficient performance “may

have affected the outcome of the proceedings by showing plausible grounds for

relief.” Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir. 2019) (internal quotation

marks omitted).

2 22-1531 Had counsel not conceded the aggravated felony, the only ground alleged in

the NTA, Lopez had a viable argument that case law analyzing similar statutes

indicated § 11352 would not categorically constitute an aggravated felony. See, e.g.,

United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc)

(California Health & Safety Code § 11360(a) not a categorical match); Mielewczyk

v. Holder, 575 F.3d 992, 996 n.1 (§ 11360(a) “largely identical to section 11352(a)”).

Then, applying the modified categorial approach, the government—using the

judicially noticeable documents discussed in Shepard v. United States, 544 U.S. 13

(2005)—likely could not have proven that the conviction was an aggravated felony

because Lopez’s judgment and charging documents were ambiguous and could have

been based on possession or transport for personal use. Thus, Lopez has sufficiently

established “plausible grounds for relief” had his counsel not conceded removability.

Flores, 930 F.3d at 1087.

The BIA’s speculation that the government could have reinstated a prior

removal order is just that, and indeed the government affirmatively declined on the

record to reinstate the prior order after taking two continuances to consider the

matter. Our review is confined to the basis actually charged in the NTA, and whether

counsel’s error affected that proceeding, rather than a discussion of hypothetical

substitute charges of removability that could have been but were not brought.

“Whatever the grounds on which [petitioner] might have been found removable,

3 22-1531 only one was charged. We have no power to affirm the BIA on a ground never

charged by the Service or found by the IJ.” Al Mutarreb v. Holder, 561 F.3d 1023,

1029 (9th Cir. 2009); see also Chowdhury v. INS, 249 F.3d 970, 975 (9th Cir. 2001)

(a conviction not specified in the NTA “cannot serve as an independent basis for

affirming”). The potential availability of uncharged removal grounds—of which

Lopez was never given notice or an opportunity to contest—is irrelevant to whether

his counsel’s deficient performance “may have affected the outcome of the

proceedings” in the case he actually seeks to reopen, which was founded on a single

charge of an aggravated felony. Flores, 930 F.3d at 1087.

Lopez also challenges the BIA’s refusal to exercise its sua sponte authority to

reopen his case, but we lack jurisdiction to review this discretionary decision unless

there was legal or constitutional error in the way it reached its decision. Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Bonilla v. Lynch, 840 F.3d 575, 588 (9th

Cir. 2016). There was no such error here.

We GRANT the petition with respect to the motion to reopen and

REMAND to the BIA for further proceedings consistent with this disposition;

we DENY the petition with respect to the sua sponte reopening. Each party

shall bear their own costs on appeal.

4 22-1531 FILED Lopez-Lopez v. Garland, No. 22-1531 SEP 27 2023 MOLLY C. DWYER, CLERK GRABER, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I concur in the disposition’s denial of the petition with respect to sua sponte

reopening. I respectfully dissent with respect to the disposition’s granting of the

petition as to the BIA’s timeliness holding. The BIA did not abuse its discretion or

commit legal error when it declined to toll the 90-day deadline for reopening a

decade-old matter.

The majority disposition errs by faulting the BIA for considering what

would have happened, had Petitioner’s counsel not conceded that Petitioner was

removable for having committed an aggravated felony. Dispo. at 3–4. The

analysis of prejudice is always counter-factual; the agency, and we, must make an

educated guess about what could have occurred in the absence of the presumed

ineffective performance by counsel. See, e.g., Flores v. Barr, 930 F.3d 1082, 1087

(9th Cir. 2019) (per curiam) (holding that, to demonstrate prejudice, a petitioner

must “demonstrate that counsel’s deficient performance ‘may have affected the

outcome of the proceedings’ by showing ‘plausible’ grounds for relief” (citations

omitted)). Thus, the BIA’s reason—that Petitioner was subject to reinstatement of

a prior removal order, and therefore could not show plausible grounds for relief—

is proper. The prejudice analysis is not the same as affirming the BIA on direct

review on a ground never charged, so the cited cases are inapplicable.