Submitted June 13, 2019 [*] Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A013-068-941
B. Gardner, Law Offices of David B. Gardner, Los Angeles,
California, for Petitioner.
Matthew B. George, Trial Attorney; Benjamin C. Mizer,
Principal Deputy Assistant Attorney; Douglas E. Ginbsurg,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Before: Kim McLane Wardlaw, Jay S. Bybee, and John B. Owens,
in part and denying in part Daniel Flores's petition for
review of a decision of the Board of Immigration Appeals'
denying his untimely motion to reopen based on ineffective
assistance of counsel, the panel concluded that the BIA
applied standards more stringent than were proper in
concluding that Flores had not established prejudice as a
result of his prior counsel's performance, and remanded.
denied Flores's motion to reopen on the ground that he
failed to show his prior counsel's performance resulted
in prejudice with respect to any of the forms of relief he
would pursue on reopening - asylum, withholding of removal,
protection under the Convention Against Torture (CAT), and
relief under former Immigration & Nationality Act §
the agency had concluded that Flores's conviction for
committing lewd and lascivious acts on a child under the age
of 14 in violation of California Penal Code § 288(a) was
an aggravated felony, the panel considered whether it had
jurisdiction in light of 8 U.S.C. § 1252(a)(2)(C), which
bars review of a final order of removal against an alien who
is removable for having committed certain offenses. The panel
concluded that it had jurisdiction to review: (1) the legal
question of whether Flores's conviction was an aggravated
felony; and (2) the denial of the motion to reopen to the
extent the decision rested on a ground other than the
panel explained that, to establish prejudice in the context
of a motion to reopen based on ineffective assistance of
counsel, it is not necessary for a petitioner to make out a
prima facie case of eligibility for the ultimate relief
sought-a petitioner need only show that counsel's
deficient performance "may have affected the outcome of
the proceedings" by showing "plausible"
grounds for relief.
respect to asylum and withholding of removal, the panel
concluded that the BIA did not abuse its discretion in
concluding that Flores suffered no prejudice, explaining that
Flores's § 288(a) conviction was a "sexual
abuse of a minor" aggravated felony under this
court's precedent, and that Flores failed to identify any
intervening higher authority that is clearly irreconcilable
with that precedent. Because Flores was convicted of an
aggravated felony with a sentence of more than five years,
the panel concluded that he was statutorily ineligible for
asylum and withholding of removal and that, therefore, the
BIA did not abuse its discretion in determining that Flores
failed to show prejudice on those grounds for relief, which
were not "plausibly" available to him.
the panel concluded that the BIA abused its discretion in
concluding that Flores failed to show prejudice with respect
to deferral of removal under the CAT. Specifically, the panel
explained that the BIA applied the wrong standard at this
stage of proceedings by concluding that the evidence Flores
submitted with his motion did not show "a clear
probability" that he would be tortured upon his return
to Mexico; although the more-likely-than-not standard governs
the merits of a CAT claim, in the context of a motion to
reopen for ineffective assistance, Flores was only required
to show plausible grounds for relief.
panel concluded that the BIA made the same error with respect
to Flores's claim for § 212(c) relief, noting that
the BIA concluded that the additional evidence of hardship
that Flores presented "would not change" the result
and explaining that the BIA abused its discretion by
improperly ruling on the merits of the new § 212(c)
evidence in the context of determining prejudice.
the panel remanded to the BIA to consider evidence relating
to these forms of relief under the correct standard for
Flores petitions for review of the Board of Immigration
Appeals' (BIA) order denying his untimely motion to
reopen his removal proceedings. Flores's motion rested on
his assertion that he received ineffective assistance of
counsel during his removal proceedings. Although the BIA
agreed with Flores that his prior counsel performed
deficiently, the BIA denied his motion to reopen after
concluding that Flores failed to show prejudice. With respect
to some of Flores's claims, however, the BIA applied
"standards more stringent than were proper" for
determining prejudice. Maravilla Maravilla v.
Ashcroft, 381 F.3d 855, 859 (9th Cir. 2004) (per
curiam). We accordingly grant the petition in part, deny the
petition in part, and remand for further proceedings.
Daniel Flores is a native and citizen of Mexico. He came to
the United States as a lawful permanent resident in 1962,
when he was seven years old, and has continuously lived in
the United States ever since. All of his family-his elderly
mother, his half-brother, two daughters, ...