Sulma Guandique-De Romero v. Pamela Bondi

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 13, 2025
• Docket: 24-1154
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1154

SULMA DE JESUS GUANDIQUE-DE ROMERO; W.A.R.G.; Z.M.R.G.,

Petitioners,

v.

PAMELA JO BONDI, Attorney General,

Respondent.

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

Argued: March 18, 2025 Decided: August 13, 2025

Before DIAZ, Chief Judge, and WYNN and BENJAMIN, Circuit Judges.

Petition for review granted; reversed in part, vacated in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Benjamin joined. Chief Judge Diaz wrote an opinion concurring in the judgment.

ARGUED: Sarah Shapiro, YALE LAW SCHOOL, New Haven, Connecticut, for Petitioners. Sarah Abigail Byrd, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Charlotte Lawrence, Caroline Lefever, Quynhanh Tran, Supreme Court Clinic, YALE LAW SCHOOL, New Haven, Connecticut; Paul W. Hughes, Sarah P. Hogarth, MCDERMOTT WILL & EMERY LLP, Washington, D.C.; Simon Y. Sandoval-Moshenberg, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioners. Brian M. Boynton, Principal Deputy Assistant Attorney General, Jennifer Levings, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 24-1154 Doc: 51 Filed: 08/13/2025 Pg: 2 of 33

WYNN, Circuit Judge:

Sulma de Jesus Guandique-de Romero petitions for review of the Board of

Immigration Appeals’ denial of her motion to reopen. The Board concluded that Guandique

failed to demonstrate that her previous attorney rendered ineffective assistance of counsel

in her removal proceedings. We disagree.

That attorney proposed a legal theory that was foreclosed by controlling precedent.

Furthermore, Guandique was prejudiced because her lawyer could have proposed

arguments that stood a strong chance of success.

We therefore grant the petition for review, reverse the Board’s order denying a new

hearing, vacate the Board’s order finding Guandique ineligible for asylum and withholding

of removal, and remand to the Board with instructions to remand for a new removal

hearing.

I.

A.

In February 2012, a gang member in El Salvador told Guandique’s husband,

William Romero, that he would kill Romero unless Romero paid the gang $3,000. 1 Romero

reported the threat to the police, but they told him that “filing a report would only make

1 This statement of facts is drawn in part from Guandique’s affidavit in support of her motion to reopen. The Board relied on this affidavit in its denial of her motion to reopen and did not question its accuracy. To the extent that the government now points to purported inconsistencies between Guandique’s affidavit and her prior testimony, the Chenery principle dictates that we “may not accept appellate counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (citing Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947)).

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things worse and that he should just comply.” J.A. 71. 2 After the threats continued, Romero

fled to the United States while Guandique remained in El Salvador with their two young

children.

Around March 2016, Guandique received a call from an unknown man whom she

believed was a gang member “because of the way he spoke.” J.A. 72. The gang member

told her that, unless she paid the gang $500, he would kill her and her children. Guandique

said that she “believe[d] they targeted me because they knew I was a woman, and because

they knew I was a woman living alone with two kids, and because my husband was in the

United States.” J.A. 73. The gang member called again the next day. Guandique stated that,

when she informed him that she didn’t have the money, “he responded that they knew my

husband was in the United States and that they knew I could pay them.” J.A. 72. She went

to the bank and withdrew the money as gang members watched.

The next day, Guandique contacted the police by phone because she was too afraid

to go in person. The police told her to either cooperate with the gang or flee. A month later,

the same gang member called her and demanded another $500, which she paid. She did the

same in May and again in June. Later that year, the gang increased its demand to $800.

When Guandique said that she could not raise that much, the gang member told her that

they knew she was the treasurer at her children’s school and that she should steal the

additional money from the school. Guandique explained to the gang that this was a

2 Citations to the “J.A.” refer to the Joint Appendix filed under seal by the parties in this appeal.

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volunteer position that did not give her access to school funds. The gang told her that if she

couldn’t come up with the $800, she could “pay them in favors to their detained gang

members’ friends who had not received conjugal visits in a while.” J.A. 74.

Guandique told her husband about the increased monetary extortion. She did not tell

him about the sexual extortion because she was “ashamed.” Id. Her husband sent her the

money, and Guandique, accompanied by her brother, dropped the money off the next day.

In the months that followed, the gang continued to demand money or sex and

continued to threaten her children. By December 2016, Guandique “could not stand living

this way anymore” and fled to the United States. J.A. 75. Shortly thereafter, an unknown

person approached Guandique’s brother in El Salvador and asked where she was. Her

brother initially lied but later admitted, under pressure from other gang members, that she

was in the United States.

B.

In the United States, Guandique retained an attorney to represent her in her asylum

proceedings. She told the attorney that she had been “sexually extorted (not just financially

extorted) and other details . . . but instead of including that information in the asylum

application, he simply responded that he was the attorney, that he knew what he was doing,

and that [Guandique] should let him do his job.” J.A. 76.

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The attorney helped Guandique apply for asylum as a refugee under 8

U.S.C. § 1158(b)(1)(B)(i). 3 Under that provision, Guandique needed to establish that

“membership in a particular social group” (“PSG”) was “one central reason” that she was

persecuted in El Salvador. Id. In her application, counsel wrote that Guandique was

targeted “because [her] husband is currently in the US,” and that it “is normal practice for

Las Pandillas [gang] members to . . . demand money from people whose relatives are in

the US.” J.A. 569. Her attorney reported that gang members would “use any possible means

of torture” if Guandique returned to El Salvador. J.A. 570. The only corroborating evidence

he submitted was a letter confirming that Guandique was a volunteer school treasurer and

reports detailing gang violence in El Salvador, including the particular dangers that women

face from gangs. Before Guandique’s removal hearing, Guandique’s attorney did not meet

with her to prepare and did not inform her of the particular-social-group requirement. He

also did not submit a pre-hearing memorandum of law, even though such a filing is

encouraged by the Department of Justice practice manual. U.S. Dep’t of Just., Off. for

Immigr. Review, Immigration Court Practice Manual § 4.19,

https://www.justice.gov/eoir/reference-materials/ic/chapter-4/19 [https://perma.cc/BAP7-

LTV3].

At Guandique’s removal hearing on October 11, 2019, the immigration judge told

her attorney, “I did look through the submissions and there’s not a whole lot there.” J.A.

3 Guandique also included her children as derivatives to her asylum claim. For simplicity, we refer only to Guandique’s claim throughout this opinion. See Villatoro v. Sessions, 685 F. App’x 242, 242 n.1 (4th Cir. 2017).

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487. When the immigration judge asked for his proposed PSG, Guandique’s attorney

responded: “El Salvador citizens whose spouses are gainfully employed in the United

States. That’s the particular social group I can think of.” J.A. 488.

But as the immigration judge later correctly concluded, that proposed PSG was

foreclosed by controlling precedent that prohibits wealth-based PSGs. In particular, the

judge concluded that “El Salvadorian citizens whose spouses are gainfully employed in the

United States is not a cognizable particular social group” because it lacks all three

necessary elements: “It lacks immutability, it lacks particularity, and there is insufficient

evidence to show that it is socially distinct.” J.A. 448. The judge also apparently concluded

that there would be no nexus between the gang’s threats and any PSG: “The Court finds

that the gang was motivated by a financial incentive and general criminality rather than

any perception of the respondent as being a member of a group larger than herself.” J.A.

450.

Guandique’s attorney appealed to the Board of Immigration Appeals focusing on

the nexus requirement, arguing that Guandique was targeted because her husband lived in

the United States and contending that “gang members extort people of money.” J.A. 428–

29. But he did not address the immigration judge’s conclusion that his proposed PSG was

non-cognizable.

In August 2023, the Board released a terse opinion denying Guandique’s appeal. It

“adopt[ed] and affirm[ed]” the immigration judge’s decision and quoted a Fourth Circuit

case indicating that wealth-based PSGs are not cognizable. J.A. 421 (citing Lizama v.

Holder, 629 F.3d 440, 446 (4th Cir. 2011) (holding that “young, Americanized, well-off

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Salvadoran male deportees with criminal histories who oppose gangs” is not a cognizable

particular social group)).

C.

In October 2023, represented by new counsel, Guandique moved the Board of

Immigration Appeals to reopen her case under 8 U.S.C. § 1229a(c)(7), claiming that she

had been prejudiced by her former attorney’s ineffective assistance of counsel (“IAC”).

She argued that her former counsel failed to submit a plausible PSG and failed to elicit

testimony that the gang sexually extorted her. She proposed two alternative PSGs that

counsel could have submitted: “immediate family members of William Alfredo Romero”

and “women.” J.A. 28–29. Had her counsel raised these PSGs, she argued, the immigration

judge “could have, to a reasonable probability,[] found nexus.” J.A. 30. Guandique also

submitted new evidence, including an affidavit detailing the financial and sexual extortion

she faced.

In a three-page opinion, the Board denied Guandique’s motion to reopen. It found

her motion procedurally proper. J.A. 8 (citing Matter of Lozada, 19 I. & N. Dec. 637, 638–

40 (B.I.A. 1988) (setting forth the procedure for claiming ineffective assistance of

counsel)). But it concluded that “the tactical decision of [counsel] to present ‘Salvadorian

citizens whose spouses are gainfully employed in the United States’ as [Guandique’s]

particular social group does not constitute ineffective assistance of counsel.” J.A. 8.

The Board also noted the immigration judge’s determination that “the gang was

motivated by a financial incentive and general criminality” rather than by Guandique being

“a member of a group larger than herself,” and concluded that Guandique’s motion to

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reopen “does not articulate a meaningfully different source of the harm.” J.A. 8–9. “For

example, she explains in her sworn declaration that” she will be raped or killed by gang

members if she returns to El Salvador, “[h]ence, the harm she fears is ‘because [she] . . .

dis [sic] not meet the [gang members’] demands . . . not because she has exhibited a

protected characteristic.” J.A. 9 (alterations other than [sic] in original). Guandique timely

petitioned this Court for review of the order denying her motion to reopen.

II.

A noncitizen who seeks asylum must establish that they are a “refugee.” 8

U.S.C. § 1158(b)(1)(B)(i). That statutory requirement has three elements: the noncitizen

must show “(1) that [they have] suffered past persecution or [have] a well-founded fear of

future persecution; (2) that the persecution is ‘on account of’ [their] race, religion,

nationality, membership in a particular social group, or political opinion; and (3) that the

persecution is perpetrated by an organization that [their] home country’s government is

unable or unwilling to control.” Portillo Flores v. Garland, 3 F.4th 615, 626 (4th Cir.

2021) (en banc) (quoting 8 U.S.C. § 1101(a)(42)(A)). The government does not contest the

first and third elements for purposes of this appeal; it argues only that Guandique failed to

meet the second element because she was not persecuted on account of membership in a

particular social group.

For all practical purposes, we review de novo the Board’s refusal to reopen

proceedings for ineffective assistance of counsel, as the government conceded at oral

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argument. Oral Arg. at 32:00–32:36, https://www.ca4.uscourts.gov/OAarchive/mp3/24-

1154-20250318.mp3. To be sure, we generally review for abuse of discretion the Board’s

refusal to reopen a case, as reopening is a discretionary remedy. Barry v. Gonzales, 445

F.3d 741, 745 (4th Cir. 2006). But “the proper standard depends on the discrete question

we must review, not some broader conclusions the [Board] could have but did not, in fact,

draw.” Williams v. Garland, 59 F.4th 620, 635 (4th Cir. 2023) (emphasis added). So, when

the Board denies a motion to reopen based on a legal determination (as opposed to factual

or discretionary grounds), we review that conclusion de novo. Id. We also review de novo

mixed questions of law and fact if “answering [them] entails primarily legal” work. Id. at

633 (quotation omitted).

Here, the Board denied Guandique’s motion to reopen because it concluded that her

former counsel’s representation did not amount to ineffective assistance of counsel.

“Whether the alleged ineffective assistance of counsel rises to the level of a due process

violation presents a mixed question of law and fact, and is therefore subject to de novo

review.” Figeroa v. I.N.S., 886 F.2d 76, 78 (4th Cir. 1989); see Gidiglo v. I.N.S., 35 F.3d

556, 1994 WL 478106, at *1 (4th Cir. 1994) (unpublished per curiam table decision)

(applying de novo review to an IAC claim in a motion to reopen while reviewing other

arguments for abuse of discretion); Fadiga v. Att’y Gen., 488 F.3d 142, 153, 163 (3d Cir.

2007) (reviewing de novo an ineffective-assistance-of-counsel claim in a motion to

reopen); Kada v. Barr, 946 F.3d 960, 964 (6th Cir. 2020) (same); Iturribarria v. I.N.S., 321

F.3d 889, 894 (9th Cir. 2003) (same). So we review that mixed question de novo, and if

we determine that Guandique has shown IAC, then the Board will have necessarily abused

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its discretion. See Fadiga, 488 F.3d at 163 (“Because the record . . . establishes that Fadiga

was denied due process, the Board abused its discretion by denying the motion to reopen.”).

Before analyzing whether Guandique has shown ineffective assistance of counsel

here, we must determine whether a noncitizen’s Fifth Amendment right to a fundamentally

fair removal proceeding can be violated by the ineffective assistance of retained counsel.

Previously, we have relied on the Board’s recognition that it can rather than taking that

position ourselves. Yang v. Holder, 770 F.3d 294, 299 n.6 (4th Cir. 2014) (“The [Board]

has recognized that ‘[i]neffective assistance of counsel in a deportation proceeding is a

denial of due process.’” (quoting Matter of Lozada, 19 I. & N. Dec. at 638)).

But while we have not taken a position on this issue, every other circuit to have

addressed the question, save one, has expressly recognized that ineffective assistance of

counsel in a removal proceeding can violate a noncitizen’s due process rights. 4 Today, we

join these other circuits and the Board in concluding that, for noncitizens who manage to

4 See Ferreira v. Barr, 939 F.3d 44, 46 n.1 (1st Cir. 2019) (“[C]laims of ineffective assistance in removal proceedings implicate the Due Process Clause of the Fifth Amendment[.]”); United States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003) (similar); Fadiga, 488 F.3d at 155 (3d Cir. 2007) (similar); Denko v. I.N.S., 351 F.3d 717, 723 (6th Cir. 2003) (similar); Surganova v. Holder, 612 F.3d 901, 907 (7th Cir. 2010) (similar); Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (similar); Osei v. I.N.S., 305 F.3d 1205, 1208 (10th Cir. 2002) (similar); Ponce Flores v. U.S. Att’y Gen., 64 F.4th 1208, 1218 (11th Cir. 2023) (similar); cf. Diaz v. Sessions, 894 F.3d 222, 227 (5th Cir. 2018) (holding that the court had jurisdiction over an IAC claim because “IAC is a constitutional claim that involves ‘a mixed question of law and fact’” (quoting Strickland v. Washington, 466 U.S. 668, 686, 698 (1984))). Contra Rafiyev v. Mukasey, 536 F.3d 853, 860 (8th Cir. 2008) (“Our circuit . . . has never recognized a constitutional right to effective counsel in a removal proceeding[.]”).

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retain an attorney, the right to a fundamentally fair proceeding can be violated by

ineffective assistance of counsel.

To be sure, the Sixth Amendment right to effective assistance of counsel only

applies to “criminal prosecutions.” U.S. Const. amend. VI. But noncitizens have a Fifth

Amendment right to due process in removal proceedings. Anim v. Mukasey, 535 F.3d 243,

258 (4th Cir. 2008). And although noncitizens are not guaranteed an appointed attorney,

they do have the right to retain an attorney. 8 U.S.C. § 1362. Those who retain counsel tend

to “rely heavily on their attorney’s advice” because “[t]he proliferation of immigration

laws and regulations has aptly been called a labyrinth that only a lawyer could

navigate.” Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008) (quoting Biwot v.

Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005)). A lawyer’s bad advice, missed deadlines,

or mere failure to prepare could all lead to the deportation of an otherwise asylum-eligible

noncitizen. See Rranci v. Att’y Gen. of U.S., 540 F.3d 165, 175 (3d Cir. 2008) (remanding

Board denial of motion to reopen where the noncitizen’s lawyer “had not done enough

research” to “identify any legal theory that might have helped Rranci obtain relief”). Of

course, it is unrealistic to expect that lawyers will never make mistakes, and sometimes

lawyers make valid tactical decisions that don’t work out as expected. Nevertheless, we

hold that some legal assistance can be so ineffective as to deny a noncitizen due process of

law.

In our vacated opinion in Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008),

judgment vacated on other grounds, 558 U.S. 801 (2009), a prior panel of this court

concluded that an immigration attorney’s ineffective assistance did not meet the Fifth

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Amendment’s state-action requirement because the “counsel was not a state actor.” Id. at

798–99. But “because the Supreme Court vacated the entirety of our prior opinion, it has

no precedential effect,” and we respectfully reach a different conclusion. Mayor & City

Council of Baltimore v. BP P.L.C., 31 F.4th 178, 228 (4th Cir. 2022).

Granted, state action is required because the Fifth Amendment affords protection

“only against infringement by governments.’” Lugar v. Edmondson Oil Co., 457 U.S. 922,

936 (1982) (quotation omitted). But the government acts by conducting the deportation

proceeding. By analogy to the criminal context, “the State’s conduct of a criminal trial

itself implicates the State in the defendant’s conviction.” Cuyler v. Sullivan, 446 U.S. 335,

344 (1980). Thus, the Supreme Court has held state action to exist when “privately retained

lawyers” provided ineffective assistance—even in the absence of an allegation “that state

officials knew or should have known that” the attorneys were ineffective—

because “[w]hen a State obtains a criminal conviction through [a trial tainted by ineffective

counsel], it is the State that unconstitutionally deprives the defendant of his liberty.” Id. at

337, 343. The same principle applies here: the government acted by conducting Romero’s

deportation hearing, even if it had no reason to know of her attorney’s ineffectiveness at

that time.

To demonstrate a due process violation in an immigration proceeding, the

noncitizen must show “(1) that a defect in the proceeding rendered it fundamentally unfair

and (2) that the defect prejudiced the outcome of the case.” Anim, 535 F.3d at 256.

Accordingly, “ineffective assistance” in an immigration case means that counsel was so

ineffective as to deny the noncitizen a fundamentally fair removal proceeding. In making

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that determination, we will consider whether counsel was reasonably competent—just as

we do in Sixth Amendment cases—because incompetent counsel is obviously likely to

affect whether a noncitizen receives a fundamentally fair hearing. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (adopting the reasonable-competence standard in

criminal cases). We seemed to do just that in Figeroa v. I.N.S. See 886 F.2d at 79 (“The

evidence is clear that [the immigration attorney’s] conduct failed to meet even the minimum

level of competence expected of an attorney under these circumstances.” (emphasis

added)). Several other circuits use a similar approach. 5 See Paucar v. Garland, 84 F.4th

71, 80 (2d Cir. 2023) (a noncitizen “must show that counsel’s performance ‘fell below an

objective standard of reasonableness’” (quoting Strickland, 466 U.S. at 688)); Calderon-

Rosas v. Att’y Gen. United States, 957 F.3d 378, 388 (3d Cir. 2020) (“An alien seeking to

reopen his immigration proceedings based on ineffective assistance of counsel must

demonstrate that ‘competent counsel would have acted otherwise.’” (quoting Fadiga, 488

F.3d at 157)); cf. Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004) (“Lin was entitled

to have [his] counsel perform with sufficient competence.”).

5 Other circuits consult Sixth Amendment case law to flesh out the Fifth Amendment right in immigration cases, even if they do not explicitly consider an immigration attorney’s reasonable competence. E.g., Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000) (relying on a Supreme Court case even though it “concern[ed] a defendant’s Sixth Amendment right to counsel” because it nevertheless “shed[] light on [the court’s] inquiry under the Fifth Amendment right to due process”); Hernandez v. Reno, 238 F.3d 50, 57 (1st Cir. 2000) (“Sixth Amendment precedent is worth consulting where counsel’s performance is attacked in a deportation proceeding, but it is not binding and should not be blindly imported wholesale.”); Paul v. U.S. I.N.S., 521 F.2d 194, 198 (5th Cir. 1975) (citing Sixth Amendment precedent to determine whether immigration counsel provided ineffective assistance).

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The Board itself applied the reasonable-competence standard in denying

Guandique’s motion to reopen. See J.A. 8 (noting that “[t]he Sixth Amendment guarantees

reasonable competence” (quoting United States v. Basham, 789 F.3d 358, 371 (4th Cir.

2015))). But now, the government seems to change course: it argues that, because the IAC

right flows from the Fifth Amendment, the standard is not “whether counsel’s performance

fell below an objective ‘reasonableness’ standard,” but instead whether the hearing was

fundamentally fair. Response Br. at 42 (quoting Lara-Torres, 383 F.3d at 974).

While we agree that the ultimate benchmark in Fifth Amendment cases like this one

is fundamental fairness, we reject any suggestion that we cannot consider the objective

competence of an immigration attorney simply because “[r]emoval proceedings are civil”

and therefore “not subject to the full panoply of procedural safeguards accompanying

criminal trials.” Id. at 24 (quoting Lara-Torres, 383 F.3d at 973). Aside from the obvious

relevance of counsel’s competence in determining whether the hearing was fundamentally

fair, the “procedural requisites for (a due process) hearing can vary, depending upon the

importance of the interests involved.” Fusari v. Steinberg, 419 U.S. 379, 389 (1975)

(quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1970)). Removal cases can be, in

practice, “death penalty cases in a traffic court setting.” Mark A. Drummond, Death

Penalty Cases in a Traffic Court Setting: Lessons from the Front Lines of Today’s

Immigration Courts, 44 Litig. News 26, 26 (2018) (statement of Immigration Judge Dana

Leigh Marks); see Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (“We have long

recognized that deportation is a particularly severe ‘penalty,’” even though “it is not, in a

strict sense, a criminal sanction.” (quoting Fong Yue Ting v. United States, 149 U.S. 698,

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740 (1893))). Here, for example, Guandique fears that she will be tortured or killed if she

is deported to El Salvador. Although other civil cases can have significant consequences,

it’s hard to beat the stakes of a removal case. That raises the bar for procedural protections

and thus for the performance of counsel.

In sum, courts evaluating whether a noncitizen was denied their Fifth Amendment

right to a fundamentally fair removal proceeding should consider whether immigration

counsel was reasonably competent.

As for prejudice, we agree with the parties that the test is the same as under the Sixth

Amendment: a petitioner is prejudiced when there is a reasonable probability that the

outcome of their case would have been different with a competent lawyer. See Rranci, 540

F.3d at 175–76 (3d Cir.) (applying the reasonable-probability test to an immigration IAC

case).

III.

Guandique was denied a fundamentally fair hearing by the performance of her

original attorney. At the time of Guandique’s removal hearing, counsel’s proposed PSG of

“El Salvador citizens whose spouses are gainfully employed in the United States” was,

under our precedent and the Board’s, dead on arrival. Furthermore, Guandique was

prejudiced by this error. She proposes two alternative PSGs: “immediate family members

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of William Alfredo Romero” and “El Salvadoran women living under gang control.” 6 Both

PSGs are likely cognizable under our precedent, and the record contains evidence sufficient

to support a finding that these PSGs were “at least one central reason for her persecution.”

Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).

Thus, for the reasons given below, we conclude that Guandique received ineffective

assistance of counsel, and remand to the Board with instructions that it grant her motion to

reopen and remand for a new hearing before an immigration judge. 7

The duty of a counsel to provide effective assistance includes “the duty to

investigate and to research a client’s case in a manner sufficient to support informed legal

judgments.” United States v. Carthorne, 878 F.3d 458, 466 (4th Cir. 2017) (emphasis

added). In particular, “ignorance of a point of law that is fundamental to his case combined

with his failure to perform basic research on that point is a quintessential example of

unreasonable performance.” Id. (quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014)).

By proposing only a clearly foreclosed legal theory, Guandique’s former counsel failed to

6 The latter PSG is somewhat different from the one that Guandique’s new counsel proposed in her motion to reopen. See J.A. 28 (proposing a PSG of “women”). We need not resolve whether that difference is significant because the government doesn’t object and therefore “forfeited any such forfeiture argument.” United States v. Newby, 91 F.4th 196, 200 n.* (4th Cir. 2024). 7 In addition to seeking asylum, Guandique applied for withholding of removal and protection under the Convention Against Torture. We do not address those claims because we conclude she received ineffective assistance on her asylum claim, which suffices for us to order a full merits rehearing. For the same reason, we do not address her other arguments for ineffective assistance beyond the PSG error.

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clear that low bar and doomed Guandique’s claim from the very beginning of her hearing,

thus rendering the proceeding fundamentally unfair.

An asylum applicant must demonstrate that they were persecuted due to their

membership in a PSG that is “(1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially distinct within the society in

question.” Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 214 (4th Cir. 2020)

(quotation omitted).

Counsel proposed that Guandique was a member of the PSG “El Salvador citizens

whose spouses are gainfully employed in the United States.” J.A. 488. But in Lizama v.

Holder, 629 F.3d 440 (4th Cir. 2011), we rejected a proposed PSG of “young,

Americanized[,] well-off[,] Salvadoran male deportees with criminal histories who oppose

gangs.” Id. at 442. We held that wealth doesn’t “‘provide an adequate benchmark for

determining group membership’ nor embody concrete traits that would readily identify a

person as possessing these characteristics.” Id. at 447 (quoting In Re A–M–E & J–G–U, 24

I. & N. Dec. 69, 76 (BIA 2007)). And, citing a 1985 Board decision, we noted as an

example that being a taxi driver is not an immutable characteristic because one could

always “chang[e] jobs.” Id. (citing Matter of Acosta, 19 I. & N. Dec. 211, 234 (B.I.A.

1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A.

1987)). Thus, Lizama’s proposed PSG was not “enduring enough” to be cognizable. Id. at

448. The Board had similarly rejected a PSG of “affluent Guatemalans” as insufficiently

immutable. In Re A-M-E & J-G-U, 24 I. & N. at 69.

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Counsel’s modifier of “gainfully employed” was therefore a clear and fatal mistake

because it invoked wealth- or employment-based distinctions which had been repeatedly

rejected. That demonstrates ineffective assistance. Similarly, we held in a habeas case that

an attorney provided ineffective assistance when he failed to object to a sentencing

enhancement because he “demonstrated that he was not even aware of the analysis

required”—even though, on the habeas petitioner’s direct appeal, we had held that

“existing precedent did not require a conclusion” that application of the enhancement was

clearly erroneous. Carthorne, 878 F.3d at 463, 468. Here, the government does not even

argue that counsel’s PSG was colorable. Instead, the government contends that it wasn’t

“an egregiously frivolous legal argument,” which does not meet any legal standard that we

are aware of. Response Br. at 30 (emphasis added).

Taking a slightly different tack, in its order denying Guandique’s motion to reopen,

the Board asserted—with no analysis and citing no evidence—that counsel’s proposed PSG

was a “tactical decision.” J.A. 8. Before this Court, the government argues that counsel was

attempting to strengthen the causal link (or “nexus”) between Guandique’s persecution and

her PSG. See Response Br. at 28 (analogizing to a partial dissent concluding that a

noncitizen’s “inclusion of the modifier young was likely a calculated attempt to strengthen

his position on the required nexus between his persecution and his membership in his

proposed group. . . . The problem though is by attempting to strengthen his nexus argument,

[the noncitizen] weakened his particularity and social distinction arguments to the point

that his group is not legally cognizable.” (quoting Garcia v. Garland, 73 F.4th 219, 236

n.5 (4th Cir. 2023) (Quattlebaum, J., dissenting in part and concurring in part))).

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To be sure, we generally defer to an attorney’s “reasonable tactical decision.”

Massis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008), abrogated on other grounds by

Santos-Zacaria v. Garland, 598 U.S. 411 (2023); see Grueninger v. Dir., Va. Dep’t of

Corr., 813 F.3d 517, 529 (4th Cir. 2016) (“We recognize that review of counsel’s

performance under Strickland is deferential, respecting the ‘wide latitude counsel must

have in making tactical decisions.’” (quoting Strickland, 466 U.S. at 689)).

But “[s]teering a client into . . . a dead-end is not a ‘tactical decision.’” Salazar-

Gonzalez v. Lynch, 798 F.3d 917, 919 (9th Cir. 2015). So, our decision in Massis v.

Mukasey is distinguishable. There, “[g]iven the state of the law [at the time of the removal

hearing], it was not unreasonable for Massis’s original counsel to” make a particular

choice. 549 F.3d at 637. It was only after Massis’s hearing that “courts of appeals

subsequently began to reach a contrary conclusion.” Id.

Here, counsel’s proposed PSG was foreclosed by law existing at the time of

Guandique’s hearing. And counsel’s failure on appeal to the Board to even challenge the

rejection of that PSG supports our conclusion that he provided ineffective assistance. “We

are therefore disinclined to accept the [government]’s invitation to engage in after-the-fact

rationalization of a litigation strategy that almost certainly was never contemplated.” Tice

v. Johnson, 647 F.3d 87, 105 (4th Cir. 2011).

The government additionally argues that, even if counsel’s proposed PSG was a

“poor tactical decision, it did not amount to ineffective assistance because Ms. Guandique

still had a fundamentally fair hearing at which she was asked open-ended questions and

given a full opportunity to explain the basis for her asylum claim.” Response Br. at 30. But

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Guandique’s counsel specifically declined to assert “any other protected grounds” for her

asylum beyond the facially deficient PSG, and the government cites no authority for the

proposition that Guandique could have somehow altered counsel’s PSG via her testimony.

J.A. 489. Counsel therefore sunk Guandique’s claim from the beginning of her hearing; the

hearing hardly became “fundamentally fair” because she was later asked open-ended

factual questions.

Though Guandique has established that her counsel provided ineffective assistance,

she still must show prejudice—i.e., that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. We conclude that she meets this burden because her two

proposed alternative PSGs would have stood a reasonable chance of success.

Guandique first proposes an alternative PSG of “immediate family members of

William Alfredo Romero.” Opening Br. at 44. This PSG was cognizable because we had

established several years before her hearing that “an individual’s membership in her

nuclear family is a particular social group,” Velasquez v. Sessions, 866 F.3d 188, 194 (4th

Cir. 2017), and that “the family provides ‘a prototypical example of a particular social

group,’” Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011) (quoting

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)).

But here the Board found that, even if this PSG would have been cognizable,

Guandique would not have been able to show a nexus between the PSG and her

persecution. In its order denying Guandique’s motion to reopen, the Board noted that “[t]he

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Immigration Judge . . . determined that ‘the gang was motivated by a financial incentive

and general criminality rather than any perception of the respondent as being a member of

a group larger than herself.’” J.A. 8 (quoting J.A. 450). The Board concluded that “the

harm she fears is because she did not meet the” gang member’s demands, “not because she

has exhibited a protected characteristic.” J.A. 9 (cleaned up). The government now urges

us to grant deference to the “Immigration Judge’s explicit finding of fact.” Response Br. at

50.

There are two problems with the Board’s analysis. First, the Board did not apply the

correct nexus standard. The proper standard, which neither the Board nor the immigration

judge cited, is whether Guandique’s membership in a PSG is “at least one central reason”

“why she, and not another person” was targeted for extortion in the first place. Hernandez-

Avalos, 784 F.3d at 950. Asserting that the gang was motivated by a financial incentive or

general criminality does not answer that question.

We considered a similar error in Hernandez-Avalos v. Lynch. There, Hernandez

asserted the PSG of “her nuclear family,” claiming that gang members threatened to kill

her if she did not allow her son to join their gang. Id. at 949. The Board rejected her

argument because “[s]he was not threatened because of her relationship to her son (i.e.

family), but rather because she would not consent to her son engaging in a criminal

activity.” Id. at 949. The gang members were surely motivated by criminality or financial

incentives when they demanded that Hernandez’s son be allowed to join the gang. We

nevertheless vacated, holding that “Hernandez’s relationship to her son is why she, and not

another person, was threatened with death if she did not allow him to join [the gang], and

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the gang members’ demands leveraged her maternal authority to control her son’s

activities.” Id. at 950 (emphasis added). We stated that the Board’s “conclusion . . . draws

a meaningless distinction under these facts” and that it was “unreasonable to assert that the

fact that Hernandez is her son’s mother is not at least one central reason for her

persecution.” Id.

The same reasoning applies here. Guandique presented evidence indicating that she

was targeted in part because her “husband was in the United States.” J.A. 73. The gang

member told her “that they knew my husband was in the United States and that they knew

I could pay them.” J.A. 72. At the hearing, she testified that she was targeted because “they

said to me, your husband is [in the United States], and I was receiving money from him.”

J.A. 499. This testimony, which the immigration judge found credible, supported that

Guandique’s relationship to her husband was “at least one central reason for her

persecution.” Hernandez-Avalos, 784 F.3d 944, 950.

Second, the Board “did not adequately consider the impact of counsel’s

ineffectiveness when it relied on the IJ’s . . . findings in evaluating prejudice” because

those findings were “tainted” by counsel’s failure to develop the record. Paucar, 84 F.4th

at 82 (remanding for a new hearing in part because the Board relied on an immigration

judge’s factual findings made when petitioner was represented by ineffective counsel). As

a result of counsel’s ineffectiveness, the record presented to the immigration judge was

underdeveloped, as the judge alluded to at the hearing. See J.A. 487 (“I did look through

the submissions and there’s not a whole lot there.”). The immigration judge couldn’t fairly

evaluate whether Guandique could establish a nexus to a hypothetical PSG based on an

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underdeveloped record, so it was unreasonable for the Board to rely on that “finding.”

Response Br. at 50.

In addition to this first alternative PSG, Guandique proposes a PSG of “El

Salvadoran women living under gang control.” Opening Br. at 47. This PSG was likely

cognizable. In Alvarez Lagos v. Barr, 927 F.3d 236 (4th Cir. 2019), which we issued four

months prior to Guandique’s hearing, we reversed the denial of a similar PSG: “unmarried

mothers in Honduras living under the control of gangs.” Id. at 245. We noted that “‘[t]he

size and breadth of a group alone does not preclude a group from qualifying as [a particular]

social group,’ and the IJ’s contrary determination was in error.” Id. at 253 (quoting

Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010)).

There is also a reasonable probability that a different lawyer could have established

a nexus between this PSG and Guandique’s persecution. We found a nexus in Alvarez

Lagos where gang members called the petitioner a “whore” and threatened to rape her and

her daughter if she did not pay. 927 F.3d at 244, 250–51. Similarly, Guandique believes

she was targeted in part because “they knew I was a woman, and because they knew I was

a woman living alone with two kids.” J.A. 73. In support of that proposition, she notes that

the gang made gendered threats against her and her daughter: the gang informed her that,

if she couldn’t meet their increased financial demands, she could “pay them in favors to

their detained gang members’ friends who had not received conjugal visits in a while,” J.A.

74; a gang member “t[old] me that if I did not want to pay him anymore, I could go with

them and do sexual acts and that he promised to give me a good time,” J.A. 75; and the

same gang member later told her that “they knew which school my daughter went to,”

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which made her “fear[] it was just a matter of time before they tried to take my daughter

away from me to use her for forced sex,” J.A. 72, 75. Guandique also submitted a report

published by Human Rights Watch and a news article explaining that gangs in El Salvador

sexually target women and girls, and another article reporting that women experience not

only “financial extortion” but “a more insidious form of extortion shaped by the threat of

sexual violence.” J.A. 294.

The government attempts to distinguish Alvarez Lagos by noting that “it was a

different country and centered heavily around the petitioner’s status as unmarried.”

Response Br. at 35. Those distinctions are without meaningful difference. Like the

petitioner in Alvarez Lagos, Guandique has submitted evidence tending to show that she

was targeted in part because she was a woman living under gang control. Although the

petitioner in Alvarez Lagos was unmarried, that fact was significant because the petitioner

was particularly “vulnerable to gang violence” when she was “without the protection of a

‘dominant male’”—just as Guandique says she was left without the protection of her

husband when he emigrated to the United States. Alvarez Lagos, 927 F.3d at 250.

Because Guandique has put forth two plausible alternative PSGs that were available

to her counsel and for which she likely could have shown nexus, she has demonstrated a

reasonable probability of a different result had her case been in the hands of a different

attorney. She has therefore established prejudice for purposes of her IAC claim.

IV.

We conclude that Guandique was denied a fundamentally fair removal hearing by

the ineffective representation of her former counsel. The Board’s denial of her motion to

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reopen based on a contrary conclusion was error. We therefore grant Guandique’s petition

for review, reverse the Board’s denial of her motion to reopen, vacate the Board’s denial

of her asylum and withholding-of-removal claims, and remand to the Board with

instructions to remand for a new hearing.

PETITION FOR REVIEW GRANTED; REVERSED IN PART, VACATED IN PART, AND REMANDED

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DIAZ, Chief Judge, concurring in the judgment:

If there are two ways to resolve a case—one constitutional, one not—we ought to

pick the latter if we can. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring). In their haste to break new constitutional ground, my colleagues

disregard that rule. I would honor it. Because we can grant Sulma Guandique’s petition

without deciding fraught and complex Fifth Amendment questions, we should do that and

no more.

As the majority recognizes, the Chenery 1 doctrine limits our review to the reasons

the Board of Immigration Appeals gave for refusing to reopen Guandique’s case.

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1109–10 (9th Cir. 2011); see INS v. Orlando

Ventura, 537 U.S. 12, 16 (2002) (per curiam). The Board relied exclusively on Sixth

Amendment caselaw when it decided that Guandique’s lawyer didn’t render deficient

performance.

The Board’s reasoning allows us to resolve this case without holding that “for

noncitizens who manage to retain an attorney, the right to a fundamentally fair proceeding

can be violated by ineffective assistance of counsel.” Majority Opinion at 10–11. The

Board denied Guandique’s motion “on the merits,” “whether or not the Constitution

require[d]” it to do so; “basic principles of administrative law” required the Board to make

1 SEC v. Chenery Corp., 318 U.S. 80 (1943).

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that decision “carefully and rationally.” Magala v. Gonzales, 434 F.3d 523, 526 (7th Cir.

2005).

This the Board did not do. Its deficient-performance holding was itself deficient.

True, our ineffective assistance cases give great deference to “reasonable tactical

decision[s] by counsel.” Massis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008). Choosing

a particular social group in asylum cases is a strategic matter.

But that deference has limits. Lawyers can pick good strategies; they can pick bad

strategies. They can’t pick doomed strategies.

The Board ignored that possibility. It acknowledged that strategic decisions are

owed “a ‘strong presumption’ of reasonableness.” J.A. 4. But the Board never asked

whether that presumption could be overcome. Instead, it made a strong presumption

absolute. That isn’t reasoned decision-making.

The Board’s prejudice decision was wrong on its own terms, too. It rested on the

immigration judge’s findings, without considering whether those findings might have been

tainted by Guandique’s inept counsel. Nor did the Board apply the correct nexus standard

when deciding whether Guandique had a reasonable chance of success on reopening.

The government doesn’t attempt to defend the Board’s reasoning. Instead, it tries

to replace the Board’s reasonableness standard with a fundamental fairness standard that

the Board didn’t consider, apply, or adopt.

Chenery forecloses that effort. “The grounds upon which an administrative order

must be judged are those upon which the record discloses that its action was based.”

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Chenery, 318 U.S. at 87. The Board never applied the government’s fundamental fairness

test, so neither should we.

I would correct the Board’s legal errors (as the majority does in Parts III.A and B),

grant Guandique’s petition, and remand. That’s all we need to say to end this case, “and

the cardinal principle of judicial restraint—if it is not necessary to decide more, it is

necessary not to decide more—counsels us to go no further.” PDK Lab’ys Inc. v. DEA,

362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the

judgment).

Still, my colleagues rush ahead to a constitutional holding. But this case is a bad

vehicle to do so, and I’m not confident in the majority’s conclusion.

The parties barely addressed the constitutional right the majority mints. And neither

side disputed its existence. The government evaded the question. It conceded, at most,

that ineffective assistance “may provide a basis for reopening removal proceedings.”

Resp’t’s Br. at 24. It noted that our circuit held otherwise in Afanwi v. Mukasey, but it

didn’t ask us to either follow or reject that now-vacated decision. Id. at 24 n.9 (discussing

Afanwi, 526 F.3d 788 (4th Cir. 2008), vacated and remanded, 558 U.S. 801 (2009)).

Guandique, for her part, presumed that the Fifth Amendment gives her a remedy for

ineffective assistance without arguing for it in so many words. But she didn’t acknowledge

Afanwi, much less grapple with it.

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Both parties, then, assumed that the Fifth Amendment has something to say about

ineffective assistance of counsel in deportation proceedings. The issue was never properly

presented to us, let alone contested, briefed, and argued.

Small wonder, then, that the majority’s constitutional holding leaves critical

questions unanswered.

To be sure, the opinion adopts the view of most of our sister circuits. Still,

constitutional meaning can’t be decided by just counting noses. We’ve said that due

process can be violated in immigration court if “a defect in the proceeding rendered it

fundamentally unfair and . . . that the defect prejudiced the outcome of the case.” Anim v.

Mukasey, 535 F.3d 243, 256 (4th Cir. 2008). Still, that test doesn’t explain why certain

kinds of defects, but not others, make a proceeding “fundamentally unfair.” And neither

does the majority. We should rely on more than intuition to recognize a new due process

right.

The majority observes that counsel in removal proceedings can significantly harm

an immigrant through incompetence. That’s true. Deportation proceedings can have sky-

high, life-and-death stakes. But lives are also on the line in post-conviction criminal

proceedings, and the Supreme Court has held that habeas petitioners with “no constitutional

right to counsel” “[cannot] be deprived of the effective assistance of counsel.” Wainwright

v. Torna, 455 U.S. 586, 587–88 (1982) (per curiam); see Coleman v. Thompson, 501 U.S.

722, 752–53 (1991) (capital case).

The majority also mentions that immigrants are entitled by statute to the retained

counsel of the immigrant’s choice. See 8 U.S.C. § 1362. But I don’t see how that

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distinguishes ordinary civil litigation. Parties there have the same right. See In re Bellsouth

Corp., 334 F.3d 941, 955 (11th Cir. 2003); Cole v. U.S. Dist. Ct., 366 F.3d 813, 817 (9th

Cir. 2004). If § 1362 were enough to ground a right to effective assistance, the majority’s

holding would constitutionalize the whole tort of malpractice.

The majority’s only response is that due process requires different safeguards

“depending upon the importance of the interests involved.” Maj. Op. at 14 (quoting Fusari

v. Steinberg, 419 U.S. 379, 389 (1975)). Again, true, but unpersuasive.

The majority doesn’t explain why due process gives no remedy for ineffective

assistance in every civil context except deportation. Harsh and cruel as deportation can be,

are the interests there intrinsically more important than those in, say, a § 1983 lawsuit

seeking exculpatory evidence, see, e.g., Skinner v. Switzer, 562 U.S. 521, 529 (2011), or

(harsher yet) in a discretionary state appeal by a prisoner? E.g., Torna, 455 U.S. at 587–88.

The majority doesn’t say.

In the end, it seems to be the background rule that “if a petitioner does not have a

right to counsel, then it is not a constitutional violation to receive ineffective assistance.”

Simon v. Gov’t of V.I., 929 F.3d 118, 131 (3d Cir. 2019). And as the majority seems to

accept, immigrants in removal proceedings have no right to counsel. See Gandarillas-

Zambrana v. Bd. of Immigr. Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995); Hernandez v.

Reno, 238 F.3d 50, 55 (1st Cir. 2001). I’m left unsure how to square the circle.

I’m more (but not entirely) convinced by the majority’s rejection of Afanwi. That

case held that an immigrant’s lawyer “cannot violate his client’s Fifth Amendment rights

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unless he can be said to be engaging in state action,” and that privately retained counsel

“[is] not a state actor.” Afanwi, 526 F.3d at 798–99.

Afanwi’s logic can’t be right as a general matter. When retained counsel renders

ineffective assistance in a criminal trial, the criminal trial is state action, and the state

“unconstitutionally deprives the defendant of his liberty” when it “obtains a criminal

conviction” by such flawed proceedings. Cuyler v. Sullivan, 446 U.S. 335, 343 (1980).

But the majority’s rule can’t be right either. Judicial action is state action. Shelley

v. Kraemer, 334 U.S. 1, 14–18 (1948). Yet courts (including ours) have refused to

constitutionalize all private misconduct leading to a judgment. Such a rule “could result in

almost all private acts taken into account by government actors being deemed state action.”

Monroe v. City of Charlottesville, 579 F.3d 380, 389 (4th Cir. 2009). We haven’t

approached the state action problem so breezily, and neither have our sister circuits. See,

e.g., Ohno v. Yasuma, 723 F.3d 984, 987 (9th Cir. 2013); United Egg Producers v.

Standard Brands, Inc., 44 F.3d 940, 942–43 (11th Cir. 1995).

The state action puzzle before us isn’t whether the government acted when it denied

Guandique’s application for asylum. It’s whether the performance of Guandique’s private

counsel can be imputed to the state. In criminal cases, the Sixth Amendment itself requires

imputation. See Coleman, 501 U.S. at 754. If the Fifth Amendment demands the same

result, the majority doesn’t explain why.

As it happens, Torna might have rejected for the Fourteenth Amendment what the

majority accepts for the Fifth. In that case, Torna was convicted of several felonies in

Florida state court. 455 U.S. at 586. Torna’s state-court lawyer missed the deadline to ask

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Florida’s high court for discretionary review, and Torna argued on habeas that his lawyer’s

negligence deprived him of the effective assistance of counsel. Id. at 586–87.

The Supreme Court held that Torna had no right to effective assistance on

discretionary appeal because he had no underlying right to counsel in that context. Id. at

587–88. But the Court also held that Torna’s due process rights weren’t violated. Even if

counsel’s misconduct deprived Torna of a due process interest, the Court reasoned, that

deprivation “was caused by [Torna’s] counsel, and not by the State.” Id. at 588 n.4.

Cuyler and Torna’s state action holdings aren’t easy to reconcile. See id. at 590

(Marshall, J., dissenting). And an unreasoned footnote in a per curiam opinion is a slender

reed on which to rest a case. Still, I don’t think the Torna footnote is dictum—and even if

it were, we’d be “obliged to afford [it] great weight.” Fusaro v. Cogan, 930 F.3d 241, 254

(4th Cir. 2019) (cleaned up). The majority doesn’t acknowledge that conundrum, but I

think it warrants our (and the parties’) attention.

* * *

Maybe the majority’s constitutional holding is right. Were the due process issue

fully litigated, I might get there. But the question is debatable enough, and important

enough, that we shouldn’t shoot from the hip. The Board applied a Sixth Amendment

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reasonable-competence standard, and we can assess its application of that standard without

deciding any questions of constitutional law. 2 See Magala, 434 F.3d at 526.

When we can avoid constitutional holdings, we should. That rule of prudence is

“more deeply rooted than any other in the process of constitutional adjudication.” Spector

Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). Because the majority charts a

different course, I can’t join its opinion. So although I, like my respected colleagues, would

grant Guandique’s petition, I concur only in the judgment.

2 That’s why the Supreme Court vacated our decision in Afanwi. As then–Solicitor General Kagan explained, “[t]he Board has recognized an administrative remedy for deficient performance by counsel” for decades, and so Afanwi could be “entitled to administrative relief as a result of his attorney’s error,” whatever the Constitution has to say on the matter. Brief for Respondent at 14–15, Afanwi v. Holder, 558 U.S. 801 (2009) (No. 08-906), 2009 WL 2625869. She suggested that the Court remand to let the Board decide Afanwi’s claim on the merits, id. at 16, and that’s just what the Court did. Afanwi v. Holder, 558 U.S. at 801.