July 29, 2015

Colorado Court of Appeals: Defendant Entitled to Crim. P. 35 Hearing on Justifiable Excuse or Excusable Neglect in Counsel’s Advice

The Colorado Court of Appeals issued its opinion in People v. Martinez-Huerta on Thursday, May 21, 2015.

Crim.P. 35(c)—Immigration—Ineffective Assistance of Counsel—Affirmative Advice—Justifiable Excuse—Justifiable Neglect.

In April 2007, defendant, a citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to vehicular eluding, a class 5 felony. At that time, he also admitted to violating the terms of his deferred judgment and sentence on an unrelated 2006 felony. In July 2007, the court sentenced him in both cases. In August 2013, defendant was placed into removal proceedings pursuant to § 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as a noncitizen who, after admission, was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. He was ordered removed from the United States in December 2013. In 2014, defendant filed a Crim.P. 35(c) motion seeking to withdraw his guilty plea, alleged ineffective assistance of plea counsel because his defense attorney assured him that a conviction would not have any immigration consequences. The trial court summarily denied his Crim.P. 35(c) motion as time barred. Defendant appealed.

When a defendant alleges that the untimely filing of a Crim.P. 35(c) motion resulted from a reasonable reliance on plea counsel’s affirmative but erroneous advice about the immigration consequences of the plea, causing the defendant to neglect to pursue timely collateral relief, the defendant is entitled to ahearing on the issue of justifiable excuse or excusable neglect. Therefore, the order was reversed and the case was remanded for a hearing on the merits of defendant’s Crim.P. 35(c) motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: “Particular Social Group” Need Not Be Visibly Distinct But Must Have Distinguishing Characteristic

The Tenth Circuit Court of Appeals issued its opinion in Rodas-Orellana v. Holder on Monday, March 2, 2015.

Benjamin Rodas-Orellana entered the United States on or around September 6, 2006, when he was 17 years old, and DHS commenced removal proceedings on September 16, 2006. Mr. Rodas-Orellana appeared before an IJ on August 28, 2007, and conceded removability but applied for asylum and withholding of removal, indicating he sought to escape poverty and gang violence in El Salvador. Mr. Rodas-Orellana specifically contended that the MS-13 gang had pressured him to join in the past and he had resisted, and this constituted a well-founded fear of persecution because of his membership in a particular social group, specifically young Salvadoran males who refused to join the gang.

On June 28, 2012, the IJ denied Mr. Rodas-Orellana’s applications for asylum and withholding of removal, finding that although Mr. Rodas-Orellana had suffered in the past at the hands of gang members, he had indicated no reason for him to be targeted by gang members other than their general desire to control the population in their areas. The IJ further concluded that Salvadoran youth who have resisted recruitment by gangs do not constitute a particular social group. Mr. Rodas-Orellana appealed to the BIA, who rejected his appeal in a January 22, 2014 final order of removal. The BIA agreed with the IJ that Mr. Rodas-Orellana’s rejection of gang membership did not place him in a particular social group, and also that perceived American nationality did not constitute a particular social group. On March 11, 2014, Mr. Rodas-Orellana filed a motion to reconsider with the BIA in light of two recent decisions, but the BIA denied his motion on May 1, 2014. On June 13, 2014, Mr. Rodas-Orellana filed a motion to consolidate his two BIA appeals, which the Tenth Circuit granted.

The Tenth Circuit reviewed the two BIA denials to consider (1) if the BIA erred in determining Mr. Rodas-Orellana was not a member of a particular social group, in light of recent BIA decisions on the issue, and (2) if the BIA erred in determining Mr. Rodas-Orellana was not persecuted based on his membership in a particular social group.

The Tenth Circuit first examined the BIA’s interpretation of the term “particular social group,” especially in light of the two recent BIA decisions narrowing its definition. The Tenth Circuit determined that a group need not be literally visibly distinguishable to constitute a “particular social group” but must have some special characteristic enabling recognition of group members. The Tenth Circuit found Mr. Rodas-Orellana failed to prove that his proposed group of young Salvadoran males who resist gang membership is socially distinct. The Tenth Circuit’s 2012 decision in Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012), where a young Salvadoran female who resisted gang membership was denied asylum, controlled as to Mr. Rodas-Orellana. Although the record reflected that gang activity is not well controlled in El Salvador, nothing suggested that Mr. Rodas-Orellana belonged to a group more susceptible to gang violence than general members of the population.

The Tenth Circuit denied Mr. Rodas-Orellana’s petition for review, finding no evidence that Mr. Rodas-Orellana was a member of a particular social group or that he was persecuted because of that membership.

Tenth Circuit: Waivers of Inadmissibility Only Precluded for Individuals Who Became LPRs at Time of Admission

The Tenth Circuit Court of Appeals issued its opinion in Medina-Rosales v. Holder on Tuesday, February 24, 2015.

Carlos Jovany Medina-Rosales entered the United States at an unknown date and became a lawful permanent resident (LPR) on November 27, 2001. On August 8, 2013, he was convicted of grand larceny in Oklahoma state court, and DHS began removal proceedings a month later. The notice of removal ordered him to appear before an immigration judge in Dallas, even though the issuing officer was in Tulsa. Medina-Rosales appeared in front of the Dallas IJ via videoconference. He conceded removability but sought a waiver of inadmissibility under § 1182(h). The IJ determined Tenth Circuit law applied, despite his physical location in Dallas, and determined Mr. Medina-Rosales was ineligible for a waiver of inadmissibility. The BIA dismissed Mr. Medina-Rosales’ appeal, and Mr. Medina-Rosales petitioned the Tenth Circuit for review.

The Tenth Circuit determined as a preliminary matter that Tenth Circuit law applied, since the charging document determines the location of the proceeding and in this case the charging document was issued in Tulsa. The IJ’s presence in Dallas did not change the location of the proceedings.

The Tenth Circuit next addressed whether § 1182’s waiver of inadmissibility language applies to individuals who became LPRs at some point after admission into the United States. Most circuits to have addressed the issue agree that the plain language of § 1182 contemplates that it only applies to individuals who were admitted at the time they became LPRs, but the Tenth Circuit had not addressed the issue.

After examining the language of § 1182, the Tenth Circuit agreed with the other circuits that the statute only precluded waivers of inadmissibility for those individuals who were admitted at the same time they became LPRs. Because Mr. Medina-Rosales was admitted at some undetermined time prior to becoming an LPR, the language did not apply to him. Despite the seemingly illogical conclusion that Congress intended the statute only to apply to those who were admitted at the same time they became LPRs, the Tenth Circuit found that Congress had ample opportunity to amend the statute and had not done so.

The Tenth Circuit found Mr. Medina-Rosales to be eligible for discretionary consideration of waiver of inadmissibility under § 1182 and remanded for further proceedings.

Law Week: Simple Tips For A Small Firm Owner

Editor’s Note: This post originally appeared in Law Week Colorado on February 18, 2015. Reprinted with permission.

Catherine_ChanBy Catherine Chan

Small firm owners have to wear many hats, among them: business promoter, manager and senior attorney. Each of those roles requires the development and refinement of distinct skill sets.

In 2004 I began a solo practice specializing in immigration law. In 2010, I hired my first associate attorney. Since 2010, the firm has grown to include three active attorneys (including me), three paralegals and a receptionist. We strive to continue to grow our capacity to help more people.

Sometimes I’m asked by new attorneys to talk about my firm’s path and to offer tips for firm growth and development. The truth is that small firm ownership, management and development is not easy. Most small firm owners just went to law school; they lack an MBA. An MBA might help with the business side of things, but it is not required to apply some common-sense principles. Here are four top tips I’ve learned over the past ten years while developing a solo practice into a small firm.

First, everybody loves customer service. If you don’t feel a good communication with a prospective client, trust your gut. Don’t hire them. For the clients you do hire — it’s not just them hiring you — you must offer that constant winner: customer service.

Clients feel they receive good customer service when the people in your firm are happy to see them, glad they called and are eager to find a response to their important question. Customer service includes the aim of providing satisfaction to the client in their purchase of your legal services. Of course, a firm can’t guarantee results. It can, however, work passionately and competently for a client’s cause, case or position. A firm can prioritize client communication and listen to the client’s questions and concerns. At the end of the day, all our clients want to be heard. We win their loyalty and referrals by graciously and faithfully complying with that request.

Second, hire and empower the best team of professionals available in the market that you can afford. As a small firm owner, you do not have the luxury of acting only as a senior associate in your firm. You have to concern yourself with the task of raising revenue to sustain the firm and to grow it. Therefore, you need key team players that are competent, motivated and able to deliver consistent and accurate products.

The firm owner can and must do many things to support and maintain a great team. You must strive to provide a workplace that is relaxed, calm and supportive. You must provide your team with responsibility and challenges. This includes providing opportunities for their self-promotion and growth — you are well advised to encourage it and invest in that for your team members. A firm can encourage its team’s growth and knowledge through providing and promoting a generous CLE budget, including for the support staff. The firm can allow for work-from-home opportunities, mental health days and maternity and paternity time. The firm should encourage work-life balance in word and in deed. The firm should also create opportunities for advancement of team-members as individuals and as ambassadors of the firm. The betterment of your team in practically any dimension adds measurable value to your firm. Individuals are motivated to succeed and to shine and to grow. The firm always wins in turn. A good plan is to provide guidance and avenues for your team to succeed, attach recognition and reward and relax antiquated notions about productivity and value.

Third, identify your niche, study it and specialize. Firms can grow and add practice areas according to their goals and growth. It may be advisable, however, especially for small firms in the early stages of growth, to pick a niche and to specialize in that. Simply put, it’s easier to study one trade carefully than to attempt to study a few trades sporadically. Next, commit your intellect, passion and dedication to your expertise. Achievement and success are positively correlated with your commitment and devotion.

Fourth, you must passionately love and respect your firm and your practice. When you love something passionately, you are grateful for it, you are mindful of it, you pay it respect and admiration, you pay it kind and tender attention and you work to keep it and increase it in order to continue enjoying it.

If you are passionate about the law, you study it, you hold it in reverence, you strive at sharpening your skills, you accept challenge and responsibility and you positively promote your profession. Instilling passion in your work can affect the outcome of your cases and your practice — whatever your field, whomever your client, whatever the cause.

It’s easy to be overwhelmed trying to run a small firm. The world of unknowns, risks and fears looms large. But risk is inherent in business, and fear is not conducive to success. The unknown simply is waiting to be discovered. A small law firm filled with passionate professionals committed to their service and their trade stands poised to succeed in the law and in business.

Catherine Chan is the managing attorney at the Chan Law Firm, a small firm specializing in immigration law.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Reinstatement of Removal Not Final Until Reasonable Fear Proceedings Complete

The Tenth Circuit Court of Appeals issued its opinion in Luna-Garcia v. Holder on Tuesday, February 10, 2015.

Melida Teresa Luna-Garcia is a native of Guatemala whose removal was ordered in 2004. She executed that order in 2007 when she left the United States and returned to Guatemala. She was again discovered in the United States on July 9, 2014, and DHS reinstated the 2004 removal order on July 11, 2014. Luna-Garcia expressed fear of harm if she returned to Guatemala and was referred to an asylum officer. She filed a petition for review with the Tenth Circuit on August 11, 2014, before the asylum officer issued a reasonable fear determination. Later, the asylum officer determined she did not have a reasonable fear, but an immigration judge has since reversed the asylum officer’s finding and Luna-Garcia is now in withholding of removal proceedings before the immigration judge.

Luna-Garcia requested the Tenth Circuit to determine when a reinstatement of removal order is final for purposes of appeal. The Tenth Circuit explained the process of reinstating a removal order and possibilities for review of reinstatement. The INA defines finality in terms of review by the BIA, but reinstatement orders are not appealable to the BIA. The Tenth Circuit examined the meaning of “final” and found that it generally means there is nothing more to do than execute the judgment. In the case where an alien argues fear of harm precludes removal, the reinstatement order is not final until the reasonable fear proceedings are complete.

The Tenth Circuit granted the government’s motion and dismissed the proceedings for lack of jurisdiction.

Colorado Court of Appeals: Defendant Has Right to Withdraw Plea as Void Ab Initio Even When Deferred Judgment Completed

The Colorado Court of Appeals issued its opinion in People v. Corrales-Castro on Thursday, March 26, 2015.

Deferred Judgment—Successful Completion of Sentence—Withdrawal of Guilty Plea—Jurisdiction—Immigration Consequences—Voluntary—Unconstitutional—Ineffective Assistance of Counsel.

In 2009, defendant pleaded guilty to criminal impersonation and DUI. The district court imposed a one-year deferred judgment and sentence on the criminal impersonation count, and one year of probation on the DUI count. In 2010, defendant successfully completed the conditions of the deferred judgment and probation. The district court withdrew the guilty plea on the criminal impersonation count, dismissed that count, and closed the case. In 2013, defendant filed a Crim.P. 32(d) motion to withdraw his guilty plea to criminal impersonation, alleging ineffective assistance of counsel. The district court denied the motion, holding that it lacked jurisdiction to consider defendant’s motion to withdraw his guilty plea.

On appeal, defendant argued that the district court erred when it held it did not retain jurisdiction to consider his motion. When a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant’s inability to re-enter the country), Crim.P. 32(d) authorizes the defendant to challenge the constitutionality of the plea, regardless of its prior withdrawal. Here, defendant claimed that ineffective assistance of counsel rendered his guilty plea involuntary and thus unconstitutional because his defense counsel had failed to inform him that his guilty plea to criminal impersonation could have negative federal immigration consequences, even if he successfully completed the conditions of the deferred judgment. Furthermore, under the circumstances presented here, a Crim.P. 32(d) motion is not subject to the time limits of CRS § 16-5-402(1), and defendant’s motion is not time barred by that statute. Accordingly, the district court retained jurisdiction to decide defendant’s motion, the order denying defendant’s motion to withdraw his guilty plea under Crim.P. 32(d) was reversed, and the case was remanded for a determination of defendant’s Crim.P. 32(d) motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: United States v. Black Did Not Change Tenth Circuit Precedent

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia-Ramirez on Wednesday, February 18, 2015.

Marcos Garcia-Ramirez entered into a plea agreement that included an appeal waiver, pleading guilty to one count of illegal reentry into the United States and receiving a 19-month sentence. Despite the appeal waiver, Garcia-Ramirez challenged his sentence as “unreasonable,” arguing simply that the court should exercise its discretion to bypass any decision on whether to enforce an appeal waiver pursuant to United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014).

The Tenth Circuit noted that Garcia-Ramirez’s argument is based on a misreading of BlackBlack did not change the Tenth Circuit’s judicial jurisprudence but merely addressed a matter of judicial economy in deciding cases. United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004), continues to be binding precedent regarding enforceability of appeal waivers, and since Garcia-Ramirez failed to cite even a single Hahn factor, his appeal failed and the motion to enforce was granted.

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

Colorado Court of Appeals: Suppression Motion Under Immigration Reform and Control Act Would Not Have Altered Verdict

The Colorado Court of Appeals issued its opinion in People v. Vicente-Sontay on Wednesday, December 31, 2014.

Immigration—Ineffective Assistance of Counsel—Plea—Voluntary—Interpreter.

Defendant, an undocumented noncitizen of the United States, completed a federal I–9 employment-eligibility verification form and began work for a company in Greeley (employer). On his verification form, he used a Social Security card and Missouri identification card, claiming to be a U.S. citizen named Marco Antonio Perez. During a routine audit, an agent from the Department of Homeland Security confirmed an outstanding Florida warrant for tax fraud against Perez and notified the Greeley police of this warrant. Believing that they were arresting Perez, the police arrested defendant. Defendant then admitted his real name to the police and the fact that he had purchased a fraudulent Social Security card and Missouri identification card for $150. He pleaded guilty to criminal impersonation.

On appeal, defendant contended that the post-conviction court erred in rejecting his three ineffective assistance of counsel claims. The Court of Appeals disagreed. First, a suppression motion under the Immigration Reform and Control Act of 1986 (IRCA), even if successful, would not have altered the verdict had defendant proceeded to trial. Further, defendant failed to show that he would not have pleaded guilty had counsel properly investigated and pursued a suppression motion under the IRCA. Second, the immigration consequences of defendant’s conviction were not succinct, clear, or explicit. As a result, plea counsel was only required to advise defendant that his pending criminal charges may have carried a risk of adverse immigration consequences, which counsel did. Third, because defendant’s eligibility for such relief was unclear, plea counsel properly advised him that his conviction might carry a risk of adverse immigration consequences. Finally, the post-conviction court did not err in rejecting defendant’s claim of ineffective assistance based on counsel’s not obtaining a K’iche interpreter for him. Defendant spoke sufficient Spanish to engage in meaningful communications with his plea counsel (with the aid of Spanish interpreters) and to navigate the judicial system. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Withdrawn Plea Constitutes “Conviction” of Felony Under Federal Immigration Law

The Colorado Court of Appeals issued its opinion in People v. Espino-Paez on Thursday, September 25, 2014.

Guilty Plea—Deferred Judgment—Federal Immigration Law—Residency—Crim.P. 32(d) and 35(c)—Ineffective Assistance of Counsel—Jurisdiction.

Defendant, a Mexican citizen, pleaded guilty to the use of a schedule II controlled substance. He received a deferred judgment for one year on the condition that he successfully complete drug and alcohol treatment. After he completed the treatment, the district court permitted him to withdraw the plea, and the court dismissed the case with prejudice. Defendant thereafter sought permanent residency in the United States, which was denied because a withdrawn plea in a Colorado state court constitutes “conviction” of a felony under federal immigration law. Defendant filed a post-conviction motion seeking to withdraw his plea pursuant to Crim.P. 35(c) and Crim.P. 32(d) based on ineffective assistance of counsel, which was denied.

On appeal, defendant contended that the district court erred in summarily denying his Crim.P. 35(c) motion. However, a deferred judgment is not reviewable under Crim.P. 35(c) unless it is revoked and a judgment is entered.

Defendant further contended that the district court abused its discretion in failing to consider his Crim.P. 32(d) motion to withdraw his guilty plea, and requested that the case be remanded for that purpose. Because defendant had already successfully completed his deferred judgment, the district court did not have jurisdiction to rule on defendant’s motion. The appeal challenging the order denying relief was dismissed and the order denying relief was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Attorney’s Failure to Submit Evidence of Residence Constituted Ineffective Representation in Removal Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Martinez Molina v. Holder on Tuesday, August 19, 2014.

Alberto Martinez Molina and Cristina Ramirez Rivera, a married couple, are Mexican citizens subject to final orders of removal from the United States. The government began removal proceedings on October 16, 2008, and, in order to cancel the removal, the couple had to show continuous presence in the United States for the past ten years, beginning October 16, 2008. At a 2008 hearing, the couple’s first attorney submitted paystubs showing that Mr. Martinez had worked in the United States since 1998 and vaccination records showing that the couple’s minor child had been vaccinated throughout 1998. Following this hearing, the couple relocated and obtained the services of a second attorney, Mr. Senseney. At the second hearing, Senseney presented evidence of residence from 1999 to 2010, but did not present any evidence regarding 1998. The immigration judge denied relief, relying in part on the missing documentation but also relying on discrepancies in the couple’s testimony. Senseney appealed to the BIA but did not challenge any of the immigration judge’s rulings. The BIA dismissed the appeal.

After the dismissal, the couple hired a third attorney, who petitioned to reopen based on ineffective representation. The couple argued that they had received ineffective representation from Senseney based on his failure to submit evidence of residence during 1998. The BIA denied the motion, ruling that it appeared from the record that the evidence was substantially similar to that relied upon by the IJ. The couple appealed to the Tenth Circuit on two grounds: (1) the immigration judge failed to consider all of the evidence, including the evidence submitted at the 2008 hearing by their first attorney, and (2) ineffective representation.

The Tenth Circuit declined to address the couple’s first argument because it lacked jurisdiction to do so. The couple had not appealed that ruling to the BIA, and without exhaustion of lower court remedies, the Tenth Circuit had no jurisdiction to hear the issue. As to the second argument, the Tenth Circuit affirmed the BIA’s decision as to Ms. Ramirez but reversed as to Mr. Martinez.

The Tenth Circuit found that the BIA abused its discretion in denying Mr. Martinez’s petition to reopen because it ruled that the evidence regarding Mr. Martinez’s presence in 1997 and 1998 that was attached to his petition appeared the same or substantially similar to that considered by the immigration judge. However, the immigration judge did not consider evidence from 1998 because she referenced the absence of evidence proving residence in October 1998. The Tenth Circuit remanded to the BIA for further findings regarding the 1998 evidence.

As to Ms. Ramirez, the Tenth Circuit found no abuse of discretion. The vaccination records from 1998 that she submitted with her petition to reopen were already in the record, leading the BIA and Tenth Circuit to conclude the immigration judge considered this evidence.

The BIA’s denial was affirmed as to Ms. Ramirez and reversed and remanded as to Mr. Martinez.