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Flores v. Barr

United States Court of Appeals, Ninth Circuit

July 18, 2019

Daniel Flores, AKA Richard Daniel Flores, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Submitted June 13, 2019 [*] Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A013-068-941

          David 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, Circuit Judges.

         SUMMARY [**]

         Immigration

         Granting 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.

         The BIA 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 § 212(c).

         Because 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 conviction.

         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.

         With 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.

         However, 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.

         The 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.

         Accordingly, the panel remanded to the BIA to consider evidence relating to these forms of relief under the correct standard for prejudice.

          OPINION

          PER CURIAM.

         Daniel 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.

         I

         A

         Petitioner 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, ...


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