Rigoberto Valdez Salazar v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 4, 2020
• Docket: 20-10655
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10655 Non-Argument Calendar ________________________

Agency No. A088-490-356

RIGOBERTO VALDEZ SALAZAR,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(November 4, 2020)

Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10655 Date Filed: 11/04/2020 Page: 2 of 11

Rigoberto Guadalupe Valdez Salazar seeks review of the Board of

Immigration Appeals’ (“BIA”) final order dismissing his appeal from the

immigration judge’s (“IJ”) decision denying his second motion to reopen. Salazar

argues that he received ineffective assistance of counsel because his two former

attorneys withdrew his application for cancellation of removal without his consent,

misled him into accepting voluntary departure, and failed to properly assert his rights

in his first motion to reopen. For the following reasons, we grant Salazar’s petition

and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Salazar, a native and citizen of Mexico, entered the United States without

permission at an unknown location in July 1996. He has remained in the United

States since that time and fathered two children, both of whom are United States

citizens. On February 2, 2008, following his arrest for a minor traffic infraction, the

Department of Homeland Security (“DHS”) filed a Notice to Appear (“NTA”) with

the immigration court initiating removal proceedings against Salazar. The NTA

charged removability on the grounds that Salazar was present in the United States

without being admitted or paroled under 8 U.S.C. § 1182(a)(6)(A)(i).

Salazar retained Robert Piccarreto as counsel to assist him with an application

for cancellation of removal, and on July 29, 2008, Salazar with Piccarreto appeared

before the IJ for his master calendar hearing. At the hearing, Salazar, through his

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counsel, admitted the factual allegations in the NTA and filed an application for

cancellation of removal or, in the alternative, voluntary departure. On October 10,

2012, Salazar, again with Piccarreto, appeared at a second hearing. The record does

not expressly reveal what happened at the October hearing, although the events of

that hearing remain relevant. Salazar claims that, minutes before the hearing,

Piccarreto informed him in English and without a translator that he must withdraw

his application for cancellation of removal and accept voluntary departure. Although

he did not understand what Piccarreto was saying, Salazar followed his attorney’s

instructions and signed and initialed the document requesting voluntary departure.

What is clear from the record is that, during the hearing, Piccarreto, on behalf of

Salazar, withdrew the application for cancellation of removal and submitted the

voluntary departure request. The IJ granted Salazar pre-conclusion voluntary

departure, allegedly issued the required advisals about the consequences of

voluntary departure, and ordered Salazar to depart the United States by February 7,

2013.

Salazar, however, did not depart. On March 8, 2018—more than six years

after he was ordered to depart the United States—Salazar hired new counsel, Uriel

Delgado, and filed his first motion to reopen, arguing that the proceedings against

him should be reopened because he received ineffective assistance of counsel from

his former attorney, Piccarreto, and because he was statutorily eligible for

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cancellation of removal. On June 6, 2018, the IJ denied the motion, finding that it

was untimely and that Salazar had failed to comply with the requirements for raising

an ineffective assistance of counsel claim. The IJ further stated that even if

Piccarreto had failed to adequately inform him about his request for voluntary

departure, there was sufficient evidence on the record—i.e., Salazar initialed the

document in thirteen locations and signed it, he did not speak up during the hearing

where a translator was present about the request, and he received notice of the grant

of the request with instructions and warnings—to indicate that Salazar voluntarily

requested voluntary departure.

On July 17, 2018, Salazar, through his then-counsel Delgado, filed a motion

to reconsider, which was denied by the IJ because it raised the same facts and

arguments as in the motion to reopen. Shortly after this denial, Salazar again sought

new counsel. On December 3, 2018, Salazar, through his new and current counsel,

Maura Finn, filed a second motion to reopen. In the second motion to reopen,

Salazar argued that he received ineffective assistance of counsel from his two prior

attorneys, that this ineffectiveness should equitably toll the time and number

limitations on the motion to reopen, and that he is prima facie eligible for

cancellation of removal.

On May 22, 2019, the IJ denied the second motion to reopen, finding that it

was time- and number-barred. The IJ further found that Salazar voluntarily

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requested pre-conclusion voluntary departure as evidenced by the request that he

signed and initialed thirteen times and the fact that he did not object to or ask

questions about the request during the hearing. Because the request was voluntarily

made, the IJ stated that any claimed ineffective assistance of counsel did not negate

the request. The IJ then declined to favorably exercise his sua sponte authority to

reopen proceedings.

Salazar timely appealed the IJ’s denial to the BIA. The BIA dismissed

Salazar’s appeal, finding that he failed to satisfy the procedural requirements to raise

a claim of ineffective assistance of counsel, that he failed to establish that he suffered

prejudice from his former counsels’ ineffectiveness, and that his initial counsel’s,

Piccarreto, actions showed that he was merely making a tactical decision related to

Salazar’s case. The BIA further agreed with the IJ that this case did not warrant the

exercise of its discretion to sua sponte reopen the case. This timely petition for

review followed.

II. STANDARD OF REVIEW

We review the denial of a motion to reopen an immigration proceeding for

abuse of discretion, determining only “whether the BIA exercised its discretion in

an arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256

(11th Cir. 2009). “The BIA abuses its discretion when it misapplies the law in

reaching its decision,” or when it fails to follow “its own precedents without

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providing a reasoned explanation for doing so.” Ferreira v. U.S. Att’y Gen., 714

F.3d 1240, 1243 (11th Cir. 2013). The appellant bears a heavy burden in proving

arbitrariness or capriciousness because motions to reopen in the context of removal

proceedings are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d 1316,

1319 (11th Cir. 2009). The BIA, however, must have given “reasoned

consideration” to a petitioner’s claims, and we will remand if its explanation (or lack

thereof) makes “meaningful review” impossible. Jeune v. U.S. Att’y Gen., 810 F.3d

792, 803 (11th Cir. 2016).

III. ANALYSIS

The BIA’s dismissal of Salazar’s appeal lacked the requisite “reasoned

consideration” to allow us to meaningfully review this petition. Generally, an alien

can file only one motion to reopen and must do so within ninety days of the final

order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). This ninety-day deadline and

numerical limitation are subject to equitable tolling, but only if a petitioner has

diligently pursued his rights and some “extraordinary circumstance stood in his

way.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018) (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Where a motion to reopen raises

an ineffective assistance claim, the facts underlying such a claim may serve as the

basis for both equitable tolling and the merits of a motion to reopen, but the inquiries

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into equitable tolling and the merits remain separate. Ruiz-Turcios v. U.S. Att’y

Gen., 717 F.3d 847, 851 (11th Cir. 2013).

Here, the BIA merely reiterated the IJ’s findings that Salazar’s second motion

to reopen was time and number barred. But it failed to address Salazar’s argument

that the filing deadline and motion number should be equitably tolled because of his

two prior counsels’ ineffective assistance. The BIA was completely silent as to any

claimed diligence on Salazar’s part or whether the ineffective assistance of his prior

counsels constituted an “extraordinary circumstance.” And although the BIA need

not have addressed the “crux” of each claim, Lin, 881 F.3d at 875, the bare bones

decision before us does not make it clear whether it considered Salazar’s arguments

at all or whether any of those arguments may justify tolling here. We therefore grant

Salazar’s petition and remand to the BIA to make such a determination in the first

instance.

With regard to the merits of Salazar’s ineffective assistance of counsel claim,

the BIA expressly adopted the IJ’s determination that Salazar had not satisfied the

procedural requirements laid out in Matter of Lozada, 19 I. & N. 637 (BIA 1988),

for raising a claim of ineffective assistance of counsel and that exceptional

circumstances were not present to warrant sua sponte reopening. The BIA also

agreed with the IJ’s determination that Salazar had not shown the requisite prejudice

to establish ineffective assistance of counsel. Because the BIA expressly adopted

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and agreed with the IJ’s opinion on these issues, we review both the decisions of the

BIA and the IJ. See Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010).

Like the BIA’s analysis regarding the motion to reopen, the BIA’s analysis

here was also lacking. Aliens have the right to retain private counsel in their removal

proceedings. 8 U.S.C. § 1362. And aliens who are represented in removal

proceedings have the right to effective assistance of counsel. Gbaya v. U.S. Att’y

Gen., 342 F.3d 1219, 1221 (11th Cir. 2003) (citing Mejia-Rodriguez v. Reno, 178

F.3d 1139, 1146 (11th Cir. 1999)). To raise a successful ineffective assistance of

counsel claim, a petitioner must establish “substantial, if not exact, compliance with

the procedural requirements of Lozada” and must also show that counsel’s

performance was deficient and resulted in prejudice. Dakane v. U.S. Att’y Gen., 399

F.3d 1269, 1274 (11th Cir. 2005). “Prejudice 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.

The parties do not dispute that Salazar did in fact substantially meet the

procedural requirements to raise an ineffective assistance of counsel claim. Rather,

they dispute the correctness of the BIA’s affirmance of the IJ’s determinations that

Salazar was not prima facie eligible for the underlying relief sought and that he failed

to show prejudice. As to the eligibility determination, the BIA held that the IJ

properly denied Salazar’s motion to reopen because he cannot show prima facie

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eligibility for the relief he seeks—cancellation of removal. The IJ held that because

Salazar failed to depart by the date set out in his voluntary departure order, he is not

eligible for cancellation of removal until 2022. It is true that “a motion to reopen

will not be granted unless the [petitioner] establishes a prima facie case of eligibility

for the underlying relief sought.” Matter of S-V-, 22 I. & N. Dec. 1306, 1307 (B.I.A.

2000) (citing INS v. Abudu, 485 U.S. 94 (1988)). But the IJ and BIA misconstrued

the underlying relief sought—namely, if Salazar’s counsel had not been ineffective,

he would not have withdrawn his initial application for cancellation nor accepted

voluntary departure. As such, the eligibility determination must be based on his

eligibility for cancellation back at the initial hearing prior to any request for

voluntary departure, not based on the circumstances as they stand today.

As to its finding of no prejudice, the BIA held that the IJ correctly found that

Salazar failed to show that he suffered actual prejudice from his prior counsels’

conduct and adopted the IJ’s reasoning for that conclusion. The IJ held that there

was no prejudice because any alleged ineffectiveness by Salazar’s prior counsel did

not negate the fact that it found that Salazar had voluntarily taken pre-conclusion

voluntary departure. Salazar argues that the IJ’s prejudice finding failed to take into

account the fact that the document he signed was in English, which he does not

understand; his initial attorney did not speak Spanish, the only language Salazar does

speak, and there was no translator present when his attorney instructed him to sign

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and initial the request; although there was a translator present at the October hearing,

the IJ never asked any questions directed to Salazar about the request or whether it

was being made voluntarily; and neither the IJ nor his attorney provided Salazar with

an explanation in Spanish of what voluntary departure entailed and the warnings of

failing to comply with the order. Based on these facts, according to Salazar, he

would not have requested or accepted voluntary departure but for the failures of his

initial attorney.

Salazar, however, failed to request or provide the transcript from the October

hearing, so our review of his voluntariness is hampered by the inadequacy of the

record before us. And although “we can review an alien’s petition for review

asserting lack of voluntariness without a transcript” where the IJ re-created and

memorialized its findings in a written order, if “we are unclear whether the recreation

reflects the entirety of the hearing” or “uncertain whether the record has been

adequately reconstructed,” a remand is appropriate. Flores-Panameno v. U.S. Att’y

Gen., 913 F.3d 1036, 1041–42 (11th Cir. 2019). Here, such a remand is appropriate.

The IJ stated that he reviewed Salazar’s request for voluntary departure, which was

signed and initialed by Salazar thirteen times, that Salazar never spoke up at the

October hearing protesting departure or questioning the request, and that the IJ

provided Salazar a written notice of his voluntary departure with additional

instructions and warnings. It remains unclear, however, whether the IJ’s statements

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relating to the October hearing adequately reconstruct the record for our review.

And given Salazar’s argument—that he was misled by his initial attorney into

signing the request and was never questioned or informed about the consequences

of the request—it would be pertinent to know whether the written notice provided

to Salazar was ever translated for him and if the IJ engaged in any form of colloquy

directly with Salazar. “For example, did the IJ ask if [Salazar] had any questions or

concerns? An open-ended question such as that one could have prompted [him] to

inquire about the veracity of [his] attorney’s advice” and the voluntariness of his

request. See id. at 1042. Although the IJ may well have done so, we have no way

of knowing based on the record before us. We therefore also remand for the BIA to

determine the scope of the IJ’s recreation of the record.

IV. CONCLUSION

For the foregoing reasons, we grant Salazar’s petition, vacate the BIA’s

decision, and remand the case to the BIA for further proceedings consistent with this

opinion. We note that our decision in no way finds that Salazar’s motion to reopen

should be tolled or that he has met his burden to reopen removal proceedings.

Rather, we remand for the BIA to make a tolling determination in the first instance

and, if it is determined that tolling is warranted, to provide reasoned consideration

on Salazar’s ineffective assistance claims consistent with our opinion.

PETITION GRANTED.