Carlos Alvarez-Espino v. William Barr

Citation: Not availableDocket: 19-2289

Court: Court of Appeals for the Seventh Circuit; March 5, 2020; Federal Appellate Court

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Carlos Alvarez-Espino, a Mexican national who entered the U.S. illegally in 1996, faced immigration enforcement after legal issues, including a robbery incident in which he assisted law enforcement, potentially qualifying him for a U visa. His initial attorney failed to recognize this opportunity and instead pursued cancellation of removal, which was ultimately unsuccessful due to Alvarez-Espino's prior prison time stemming from a drunk driving arrest. After a prolonged legal battle lasting over three years, an immigration judge ruled he was ineligible for cancellation, expressing dissatisfaction with his attorney's lack of information during the proceedings. The Board of Immigration Appeals upheld this decision but remanded the case to explore the option of voluntary departure, which would allow Alvarez-Espino to apply for reentry after ten years rather than facing a lifetime bar. The court ultimately denied Alvarez-Espino's petition for review, citing that he could not demonstrate prejudice from his attorney's ineffective assistance since he still had the opportunity to pursue the U visa.

Alvarez-Espino sought new legal representation after becoming frustrated with his prior attorney. His new counsel identified that he likely qualified for a U visa due to his assistance to law enforcement following a robbery. U visas are available to immigrant crime victims who have endured substantial abuse and have cooperated with authorities, according to 8 U.S.C. 1101(a)(15)(U). Applicants must obtain law enforcement certification confirming their cooperation and demonstrate admissibility to receive a visa, with provisions for inadmissibility waivers under 8 U.S.C. 1182(d)(14) for those who entered the U.S. illegally.

The new attorney began preparing a U visa application and requested certification from law enforcement while also seeking a continuance from the immigration court to finalize the paperwork. However, the immigration judge (IJ) denied the continuance, citing Alvarez-Espino's lengthy delay in applying for the U visa and rejecting the argument that his prior counsel’s ineffective assistance justified the delay. Alvarez-Espino appealed the IJ's decision, sought a remand to apply for a waiver of inadmissibility, and requested termination of his removal proceedings due to alleged errors in his initial Notice to Appear.

While the appeal was pending, his new attorney submitted the U visa application to USCIS and took steps to substantiate an ineffective assistance claim against the previous attorney, including signing an affidavit and notifying the state bar. The first attorney contended that Alvarez-Espino had never disclosed being a crime victim. The Board dismissed Alvarez-Espino's appeal, finding no evidence he informed his prior counsel of the robbery and highlighting his repeated delays in court. The Board also determined he could still pursue a U visa if removed to Mexico and denied the motion to terminate proceedings, asserting he suffered no harm from the alleged Notice errors. Alvarez-Espino has since petitioned for judicial review.

The review standard for denials of continuances and remands is an abuse of discretion, where reversal occurs only if the decision lacks rational explanation or deviates from established policies. Alvarez-Espino argues that the IJ and Board should have granted the continuance to allow USCIS processing of his U visa application, noting that recent guidelines specify that good cause must be shown for such requests.

Alvarez-Espino contended that his initial attorney was ineffective, a claim the Board rejected, noting a lack of evidence that he communicated pertinent information about a robbery to his counsel. The Board's reasoning is criticized for overlooking the implications of ineffective assistance of counsel, which, while not a right under the Sixth Amendment in removal proceedings, can violate an immigrant's statutory rights or due process under the Fifth Amendment. Effective assistance is necessary when an attorney's errors prevent a noncitizen from reasonably presenting their case, as established in relevant case law.

To succeed in a claim of ineffective assistance, a noncitizen must demonstrate that counsel's errors had the potential to affect the outcome of the proceedings and show actual prejudice. The Board wrongly placed the burden on Alvarez-Espino to provide his attorney with significant information for a potential U visa application, instead of recognizing that it is the attorney's responsibility to inquire about relevant details. Alvarez-Espino stated that his initial counsel failed to ask if he had been a crime victim, while the counsel maintained that he routinely asks this question, highlighting confusion and miscommunication.

Despite the shortcomings of the initial representation, Alvarez-Espino's main challenge lies in proving prejudice, as he was still able to file a U visa application, which would be processed by USCIS regardless of his removal status. The potential delay in filing the application due to counsel's performance does not equate to a finding of prejudice, as mere delay has not been deemed prejudicial in similar contexts. Therefore, the Board did not abuse its discretion in denying a continuance or in rejecting Alvarez-Espino's request to remand the case for a waiver of inadmissibility, noting that both immigration judges and USCIS have concurrent jurisdiction over such waivers.

Alvarez-Espino sought a waiver from USCIS in conjunction with his U visa application, and the Board determined it did not abuse its discretion by denying his motion for remand or continuance, allowing him to pursue all immigration benefits available to him. Additionally, Alvarez-Espino argued that removal proceedings should terminate due to the Notice to Appear lacking a specific date and time for his initial hearing, citing the Supreme Court's ruling in Pereira v. Sessions. However, the Board clarified that the requirement for a date and time in the Notice is a claims-processing rule rather than a jurisdictional one. Consequently, Alvarez-Espino is required to demonstrate prejudice resulting from this deficiency, which he failed to do. The record indicates that he received a supplemental letter informing him of the hearing details and attended the proceeding, negating any claims of prejudice. Therefore, the petition for review is denied.