Argued and Submitted, Pasadena, California January 6, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:10-cr-04882-LAB-1. Larry A. Burns, District Judge, Presiding.
The panel reversed a criminal judgment and remanded for dismissal of an indictment charging illegal reentry under 8 U.S.C. § 1326 in a case in which Brigido Lopez-Chavez argued that his attorney in the immigration proceedings provided ineffective assistance of counsel.
The panel held that Lopez-Chavez received ineffective assistance of counsel, where his attorney (1) conceded removability based on Lopez-Chavez's prior conviction for possession of marijuana with intent to deliver under Missouri Revised Statutes § 195.211, which covers conduct that may fit under either the felony or the misdemeanor provisions of the Controlled Substances Act; and (2) failed to pursue appellate proceedings that the BIA had announced could result in a holding that Lopez-Chavez's conviction did not constitute a removable offense. The panel held that counsel's conduct prevented Lopez-Chavez from reasonably presenting his case, rendered the proceedings fundamentally unfair, and resulted in prejudice.
Harini P. Raghupathi, Federal Defenders of San Diego, San Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt and Richard R. Clifton, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Brigido Lopez-Chavez challenges his conviction for criminal reentry by making a collateral attack on his underlying removal order. He argues that his attorney in the immigration proceedings provided ineffective assistance of counsel in erroneously conceding his removability, failing to appeal the removal order to the Board of Immigration Appeals (" BIA" ), and failing to petition the Seventh Circuit for review. He asserts that counsel's ineffective performance was prejudicial because Lopez-Chavez's state crime of conviction--possession of marijuana with intent to deliver under Missouri Revised Statutes § 195.211--did not constitute an aggravated felony under the Immigration and Nationality Act (" INA" ). We hold that Lopez-Chavez received ineffective assistance of counsel throughout the immigration proceedings, that he was deprived of his right to due process, that the proceedings were fundamentally unfair, and that the indictment for criminal reentry must be dismissed.
Brigido Lopez-Chavez is the son of a seasonal agricultural laborer who originally came to work in the United States through the Bracero Program. In 1984, when his father began to have health problems and could no longer endure the physically demanding work in the fields, Lopez-Chavez came to Live Oak, California, and worked picking lemons, cherries, apples, strawberries, grapes, and lettuce, in order to help support his family. In 1986, Lopez-Chavez moved to St. Louis, Missouri, where he worked as a busboy and then a prep cook in a Chinese restaurant. On December 1, 1990, Lopez-Chavez became a legal permanent resident. He paid taxes and purchased a mobile home but was still able to send money home to his parents in Mexico to which his father had returned. Lopez-Chavez also helped his sister and her family and his brother and his family settle into St. Louis and find employment.
On February 7, 2003, Lopez-Chavez was convicted of possessing marijuana with intent to deliver under Missouri Revised Statutes § 195.211. He received a sentence of 90 days with work release authorization and five years probation. On June 13, 2003, he was issued a Notice to Appear (" NTA" ) that set forth five factual allegations: (1) Lopez-Chavez was not a citizen or national of the United States, (2) he was a native and citizen of Mexico, (3) he entered the country without inspection, (4) he adjusted to the status of Legal Permanent Resident in 1990, and (5) he was convicted for the offense of " Possession with Intent to Deliver a Controlled Substance, a Class B Felony, in violation of Section 195.211" of the Missouri Revised Statutes. On the basis of those allegations, he was charged as being removable
under INA § 237(a)(2)(A)(iii) as having " been convicted of an aggravated felony as defined in Section 101(a)(43)(B) of the Act, an offense relating to the illicit trafficking in a controlled substance, as described in section 102 of the Controlled Substances Act, including a drug trafficking crime, as defined in section 924(c) of Title 18, United States Code."
Attorney Pari Sheth entered an appearance as Lopez-Chavez's counsel. Before the removal hearing had taken place, Sheth inexplicably filed a " motion to reopen and for a stay of deportation proceedings pending a bond hearing." At the removal hearing, Sheth conceded all five factual allegations of the NTA. When the Immigration Judge (" IJ" ) asked for a response to the charge that Lopez-Chavez had ...