Maximo De Leon-Ajucum v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2021
• Docket: 20-70433
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MAXIMO DE LEON-AJUCUM, No. 20-70433

Petitioner, Agency No. A205-023-748

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted November 19, 2021 San Francisco, California

Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.

Maximo De Leon Ajucum (“De Leon”), a native and citizen of Guatemala,

petitions for review of a Board of Immigration Appeals (“BIA”) order denying his

motion to reopen to pursue relief under the Convention Against Torture (“CAT”).

We grant the petition and remand with instructions to grant the motion to reopen.

1. The BIA abused its discretion in denying De Leon’s motion to reopen,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. which included sworn declarations by De Leon and his sister providing evidence

that he had received ineffective assistance of counsel in his removal proceedings.

According to De Leon’s declaration, his former counsel never spoke with him as

she prepared his I-589 form and accompanying declaration. She did not review the

application with him, translate it, or read it to him in Spanish before filing it. The

first time De Leon saw or spoke with his former counsel was at his September 23,

2013 hearing in immigration court, and she did not meet with him to discuss or

prepare for the next hearing on October 17, 2013. De Leon’s first prolonged

conversation with her was on direct examination at the October hearing, at the end

of which the immigration judge denied his applications for relief. Former counsel

also failed to present easily obtainable country conditions evidence that would

have supported De Leon’s claim that he would face torture if returned to

Guatemala. Indeed, the only country conditions evidence for Guatemala consisted

of a two-page excerpt from the 2011 State Department Human Rights Report that

did not discuss gang violence or the forced recruitment of young men. De Leon’s

sister stated in her declaration that former counsel asked her to write a letter of

support to the court, as well as to get letters from their mother and from several

people in Guatemala who had witnessed De Leon’s mistreatment, but that counsel

only ever submitted the letters from De Leon’s sister and mother.

Former counsel sent a signed, unsworn letter in response to De Leon’s

2 complaint disagreeing with these accusations. She contended that she had

“prepared the I-589 and the declaration with Mr. De Leon with the facts that he

provided” to her and had “read both back to him in Spanish, and . . . read

everything to him one more time just before the hearing.” She further stated that

the only corroborating letters she had received were the letters from De Leon’s

sister and mother. Finally, former counsel explained that she did not submit

further country conditions evidence because she found the excerpted country

conditions report “sufficient given the facts in the case,” and that any additional

materials “would have stated the same.”

After reviewing De Leon’s declaration and former counsel’s response, the

BIA concluded that counsel’s performance constituted a “reasonable professional

assessment of the applicant’s case.” In so concluding, the BIA appears to have

credited former counsel’s unsworn letter over De Leon’s sworn declaration. This

was an abuse of discretion. In assessing a motion to reopen, the BIA “must accept

as true the facts stated in . . . affidavits [and declarations] unless they are inherently

unbelievable.” Kaur v. Garland, 2 F.4th 823, 833 (9th Cir. 2021) (alterations in

original) (quoting Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)). De Leon’s

account is not inherently unbelievable simply because it was contradicted by his

former counsel.

Accepting as true the facts stated in De Leon’s declaration, it is not a

3 “reasonable professional assessment of the applicant’s case” to fail to prepare an

application with a client, to fail to translate that application and the accompanying

declaration into a language the client understands, to fail to prepare a client for his

hearing, and to lose or otherwise fail to submit corroborating evidence. See Lin v.

Ashcroft, 377 F.3d 1014, 1024-25 (9th Cir. 2004). It is also unreasonable to fail to

present readily obtainable country conditions evidence that is often critical to

showing a likelihood of future torture. See Kamalthas v. INS, 251 F.3d 1279, 1280

(9th Cir. 2001) (recognizing that “country conditions alone can play a decisive role

in granting relief under [CAT]”). We therefore conclude that former counsel’s

performance was deficient.

2. The BIA further abused its discretion by applying the ultimate merits

standard when evaluating whether De Leon was prejudiced by any deficiency in

counsel’s performance. The BIA held that De Leon suffered no prejudice because

“he ha[d] still not shown a clear probability that he [was] personally at risk of

torture in Guatemala.” This is the wrong standard. On a motion to reopen for

ineffective assistance of counsel, De Leon was required to show only that

counsel’s ineffectiveness “may have affected the outcome of the proceedings,

which means that [he] need only show plausible grounds for relief.” Flores v.

4 Barr, 930 F.3d 1082, 1088-89 (9th Cir. 2019) (emphases in original) (cleaned up).1

Applying the correct standard, we conclude that De Leon has shown

plausible grounds for CAT relief and that his former counsel’s deficient

performance may have affected the outcome of the proceedings. Represented by

new counsel, De Leon presented several pieces of evidence that were absent from

the prior CAT claim. First, De Leon’s new declaration described attacks by gangs

in Guatemala that were omitted from his prior declaration. Second, his new

counsel submitted country conditions evidence supporting De Leon’s

particularized risk of torture in Guatemala and the government’s likely

acquiescence or complicity. Third, De Leon explained that there was no

possibility of internal relocation because the gangs were present throughout the

country, a fact that his country conditions evidence corroborated. Fourth, De Leon

explained that after he had left Guatemala, gang members asked his father about

his whereabouts. Based on the evidence in De Leon’s motion to reopen, he has

met his burden to show that prior counsel’s deficient performance may have

affected the outcome of the proceedings.

Because De Leon has shown both deficient performance and prejudice, “he

should be given an opportunity to prove his claims, this time with the assistance of

1 The BIA recited the correct standard at other points in its decision, but we are not persuaded that it applied this standard throughout.

5 competent counsel.” Id. at 1089; see also Mohammed v. Gonzales, 400 F.3d 785,

802-03 (9th Cir. 2005) (granting petition for review, and remanding with

instructions to grant the motion to reopen, where petitioner established both

deficient performance and prejudice).

Accordingly, we GRANT De Leon’s petition and REMAND to the BIA

with instructions to grant the motion to reopen.