Jose Juan Martinez Barroso v. Alberto R. Gonzales, Attorney General
Docket: 03-72552
Court: Court of Appeals for the Ninth Circuit; November 18, 2005; Federal Appellate Court
Jose Juan Martinez Barroso petitioned the Ninth Circuit Court of Appeals for review of a Board of Immigration Appeals (BIA) order that denied his motion to reconsider a previous appeal denial. His motion claimed ineffective assistance of counsel and a violation of his right to counsel of choice. The BIA rejected the ineffective assistance claim but did not address the counsel of choice issue. Furthermore, Barroso was denied relief due to his failure to leave the U.S. within the voluntary departure period.
The court ruled that if an alien files a timely motion to reconsider within the voluntary departure period, that period is automatically tolled while awaiting the BIA's decision. It also found that the BIA abused its discretion by not addressing Barroso's right to counsel claim and remanded the case for further determination on that issue.
Barroso, a native of Mexico who entered the U.S. in 1985, sought legal assistance in 1998 and mistakenly hired Abad "Nork" Cabrera, who falsely claimed to be an attorney but was actually an immigration consultant. Believing Cabrera was his lawyer, Barroso relied on him for legal advice, despite Cabrera's lack of qualifications. Cabrera advised Barroso to file for political asylum, which was inappropriate since Barroso did not fear returning to Mexico. This led to Barroso being served a Notice to Appear by the Immigration and Naturalization Service (INS). During his initial hearing, represented by an attorney from Cabrera, Barroso withdrew his asylum application and sought cancellation of removal or voluntary departure. However, the attorney failed to file the necessary application on time, leading to further complications in Barroso's case.
On February 19, 1999, Barroso attended court, while Peake did not appear or file the necessary application for cancellation of removal. The Immigration Judge (IJ) postponed the hearing until March 12, 1999, emphasizing that the application must be filed by then. On that date, Ramin Ghashghaei represented Barroso, and although there was confusion regarding representation, Ghashghaei filed the application. The IJ scheduled a subsequent hearing for October 12, 1999, which was later rescheduled to February 17, 2000, but no transcript evidencing this hearing exists. Instead, a notice was mailed to Ghashghaei on that date, but not to Barroso, indicating a new hearing on January 23, 2001. Ghashghaei requested a continuance for this hearing, resulting in it being rescheduled to January 24, 2001.
At the January 24, 2001 hearing, Ghashghaei sought to withdraw as Barroso's counsel due to communication issues, and Barroso explained his new attorney was absent because Ghashghaei failed to inform them of the hearing date until the night before. Barroso's wife testified that they had not entered the courtroom on February 17, 2000, and were misinformed by Ghashghaei about the hearing. Despite Barroso's claims of a language barrier and Ghashghaei’s lack of communication, the IJ dismissed these concerns, describing Ghashghaei as responsible. The IJ denied Barroso's request for a continuance, citing repeated delays and indicating the case would be decided that day, despite Barroso’s request for additional time to prepare. The IJ stated that the court's calendar was full and only emergency cases could receive expedited consideration.
Barroso was compelled to testify without legal representation or knowledge of immigration law, as his new attorney assured him of a continuance that did not materialize. He lacked supporting documentation and witnesses, except for his wife, during the January 24, 2001 hearing. Barroso entered the U.S. in 1985, faced legal issues including a drunk driving conviction in 1988, and was deported in 1989 after attempting illegal re-entry. He returned illegally in 1990 and married Juana Gomez, a permanent resident, in 1998. At the hearing, Barroso mistakenly believed his advisor, Cabrera, was his lawyer, despite Cabrera's lack of legal obligations. The Immigration Judge (IJ) acknowledged Barroso's deception by Cabrera but deemed his reliance on Cabrera's counsel unreasonable.
The IJ denied Barroso's application for cancellation of removal, outlining four eligibility criteria: continuous physical presence for ten years, good moral character, absence of certain criminal convictions, and demonstrating exceptional hardship to a qualifying relative. The IJ found Barroso "probably" met the first criterion, but his prior deportation could disrupt the ten-year requirement. Barroso met the second and third criteria, but the IJ ruled that he did not show the requisite exceptional hardship. Despite recognizing Barroso's inadequate legal representation, the IJ criticized his reliance on Cabrera's advice.
Barroso's appeal to the Board of Immigration Appeals (BIA) for ineffective assistance of counsel was denied, as he failed to meet the standards in Matter of Lozada. The BIA allowed a thirty-day voluntary departure period. Subsequently, Barroso filed a motion to reconsider with the BIA, claiming ineffective assistance of counsel and arguing that he was denied his right to counsel of choice due to the IJ's actions.
On June 10, 2003, the BIA denied Barroso's motion for two reasons: (1) Barroso's failure to depart the U.S. within the thirty-day voluntary departure period rendered him statutorily ineligible for cancellation of removal under 8 U.S.C. 1229c(d) and 240B(d) of the Immigration and Nationality Act; and (2) the BIA found no evidence supporting Barroso's claim of ineffective assistance of counsel, nor did he demonstrate any resulting prejudice. Notably, the BIA did not address Barroso's claim regarding denial of his right to counsel of choice. Following this denial, Barroso timely petitioned for review in court.
Jurisdiction to review the BIA's denial comes under 8 U.S.C. 1252(a), with the standard of review being an assessment for abuse of discretion. The BIA's ruling on Barroso's failure to depart within the voluntary departure period illustrates a complex issue arising from the interplay between the voluntary departure and motion to reconsider provisions in the INA. The law stipulates that failing to depart within the designated timeframe makes an alien ineligible for cancellation of removal for ten years. Conversely, aliens have the right to file a motion to reconsider within thirty days of a removal order, yet the BIA can take considerable time to decide such motions. If an alien departs during the voluntary departure period, any pending motion is forfeited. This creates a "Catch 22," where aliens are effectively barred from a merits decision on timely motions, regardless of whether they stay or leave.
The court has previously recognized this problematic interpretation, stating it would be unreasonable to assume Congress intended to deny aliens the ability to have their motions adjudicated through the mechanism of voluntary departure limitations. Therefore, it has been held that a timely filed motion for reopening, when combined with a request for a stay of removal or voluntary departure, tolls the voluntary departure period while the BIA considers the motion.
The BIA's order in Barroso's case occurred before the decision in Azarte, which posed a similar issue. Consequently, the court requested supplemental briefs regarding Azarte's relevance to Barroso's case. The government contended that Azarte is inapplicable for two main reasons: Barroso did not file his motion to reconsider within the required voluntary departure period, and he did not request a separate stay of removal or the departure period during his motion.
Regarding the first point, the court noted that in Azarte, the ability to toll the voluntary departure period depended on filing a motion before that period expired. Case law supports that if a motion is filed after the departure period, the BIA can deny it. Barroso’s voluntary departure period ended on March 22, 2003, and the deadline for filing his motion to reconsider coincided with it. However, if the deadline falls on a Saturday, it is extended to the next business day, making March 24, 2003, the effective deadline.
The government initially acknowledged that Barroso's motion was received on March 24 but later claimed in a supplemental brief that it was not filed within the departure period based on an April 2 receipt date. The court found that raising this issue for the first time in a supplemental brief could be considered a waiver. As such, the government’s late change in position, lacking prior explanation, was not accepted by the court.
The government’s revised argument regarding the filing date of Barroso's motion is rejected based on record evidence. The motion was filed on March 24, 2003, as confirmed by two stamps from the BIA clerk’s office—one dated March 24 and the other April 2. Although the BIA notified Barroso's counsel on March 25 about an incorrect alien registration number, a corrected letter was submitted by counsel on March 28 and received on April 2. The BIA did not dismiss the motion for being untimely, indicating it was filed within the required 30-day deadline as per 8 U.S.C. 1229a(c)(6)(B).
Additionally, Barroso’s motion was filed within his voluntary departure period, a fact conceded by the government during oral arguments. The document clarifies that while BIA regulations address weekend calculations for reconsideration motions, there is no guidance in the relevant regulations or statutes regarding voluntary departure periods. In a precedent case, Salvador-Calleros v. Ashcroft, the court ruled that when the last day of a period falls on a weekend, the deadline extends to the following Monday, reinforcing that March 24 was indeed the proper deadline for Barroso’s motion.
Two thirty-day periods commence simultaneously: one for filing a motion to reconsider and another for voluntary departure. The Board of Immigration Appeals (BIA) regulations specify the computation for the motion to reconsider but remain silent on the voluntary departure period. To mitigate confusion and implement the intent of both provisions, the same deadline should apply to both periods. Consequently, Barroso's motion to reconsider, filed on March 24th, is deemed timely within the voluntary departure timeframe.
The government contends that Barroso's failure to request a stay of removal or voluntary departure makes the Azarte case inapplicable. However, Azarte did not resolve whether filing a motion automatically tolls the voluntary departure period since the petitioners had requested a stay. The court now asserts that timely filing of a motion to reopen or reconsider automatically tolls the voluntary departure period, aligning with Congressional intent and favoring the alien in cases of statutory ambiguity.
Azarte's rationale supports this automatic tolling as consistent with legislative goals. The Department of Justice's interim rule regarding the effect of appeals or motions on voluntary departure acknowledges automatic tolling as a logical solution, suggesting that aliens should remain in the country until motions are resolved. Furthermore, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not mandate an affirmative request to stay voluntary departure, nor do existing regulations impose such a requirement.
BIA regulations limit the authority to extend the time for voluntary departure as initially set by an immigration judge or the Board. Automatic tolling stops the clock on the departure period but does not grant additional time. The term "toll" is defined as stopping the running of a time period, while "extension" refers to adding time for action. Although one DOJ regulation might suggest that automatic tolling requires a separate stay motion, it is concluded that this regulation does not apply to voluntary departure. The execution of a decision pertains to deportation orders, not voluntary departure, which is initiated by the alien. Therefore, tolling does not equate to staying the execution of a decision. Moreover, interpreting the regulation to necessitate a separate stay motion would produce absurd results, contradicting statutory intent and judicial efficiency. The decision in Azarte supports the view that requiring a stay motion alongside a motion to reopen would prevent the BIA from denying a stay in cases where the motion is filed within the voluntary departure period, thereby contradicting the rights of aliens to have their motions heard on the merits.
Requiring aliens to file a separate stay motion alongside their timely motion to reopen or reconsider would impose an unnecessary procedural burden on them, complicating compliance with immigration laws. This additional requirement would increase paperwork for all parties, including an already overwhelmed bureaucracy. Denying relief to those who do not submit a separate stay motion, while granting it to those whose counsel are more knowledgeable, contradicts statutory purposes and previous reasoning in the Azarte case. Automatic tolling of the voluntary departure period is essential for ensuring a fair and workable process. The decision confirms that Barroso's timely motion to reconsider automatically tolled his departure time. The ruling is also necessary for consistency within circuit law. The Board of Immigration Appeals (BIA) abused its discretion by denying Barroso's motion based on his failure to depart within the thirty-day voluntary period. Additionally, Barroso's claim of inadequate representation and denial of his right to counsel was not addressed by the BIA, raising concerns about the Board's interpretation of his claims. The government's explanation of the BIA's silence lacks clarity, as there is no evidence of any ruling on the denial of counsel claim in the BIA's decision.
The BIA is obligated to address all arguments presented by a petitioner, and failure to do so constitutes an abuse of discretion, as established in Sagaydak v. Gonzales and further supported by Mendez-Gutierrez and Mejia cases. Specifically, the BIA neglected to consider Barroso's claim regarding the denial of his right to counsel, which is significant given the strong evidence indicating that he did not knowingly and voluntarily waive this right. The Tawadrus case confirms that a lack of a knowing and voluntary waiver equates to an effective denial of counsel, potentially amounting to an abuse of discretion. Additionally, Barroso's request for a continuance was not due to unreasonable conduct on his part, and the law emphasizes that concerns about delay should not infringe upon a petitioner's statutory right to counsel. While there are indications that Barroso may have been denied his right to counsel, the determination of this issue is left to the BIA. Consequently, the petition is granted, and the case is remanded for the BIA to reassess whether Barroso's statutory right was violated. The court does not address Barroso's claim of ineffective assistance of counsel due to the remand on the counsel issue. Other notes highlight cultural misunderstandings that put Latino immigrants at risk of exploitation by "notarios," and references specific procedural details related to Barroso’s hearings and documentation. The statute 8 U.S.C. § 1362 guarantees individuals in removal proceedings the right to choose their counsel, reinforcing the importance of these legal protections.
An alien who is granted voluntary departure but fails to leave the U.S. within the specified timeframe becomes ineligible for relief under 8 U.S.C. § 1229b for ten years. Barroso's motion to reconsider, initially governed by 8 U.S.C. § 1229a(c)(5), is now under § 1229a(c)(6) due to amendments from the REAL ID Act of 2005, which did not alter the substance of the law. Regulatory provisions related to motions to reopen and reconsider were previously at 8 C.F.R. § 3.2 and are now at § 1003.2, with no substantive differences affecting Barroso's case. According to 8 C.F.R. § 1003.2(d), any departure from the U.S. during the pendency of such motions constitutes a withdrawal of those motions. The reasoning applied in Azarte regarding motions to reopen is equally applicable to motions to reconsider, establishing that both motions are governed similarly under IIRIRA. The court overruled its prior decision in Shaar v. INS, affirming that the current understanding aligns with decisions from the Third and Eighth Circuits. The government incorrectly asserted that Barroso's motion was late; however, it was timely as it was due on March 24th.
Barroso's motion for ineffective assistance of counsel does not align with the precedent set in Iturribarria v. INS, as he had previously asserted this claim in his appeal and failed to present new evidence that was undiscoverable earlier, as required under 8 U.S.C. § 1229a(c)(7)(B). The Board of Immigration Appeals (BIA) appropriately treated the motion as one for reconsideration. The BIA Practice Manual indicates that the date stamp governs the timeliness of filings. The government argued that Barroso's filing was late, occurring several days after the thirty-day voluntary departure period. Federal Rule of Appellate Procedure 26(a)(3) states that the last day of a period should be counted unless it falls on a weekend or holiday. The ruling does not extend the voluntary departure period but clarifies how to calculate the thirtieth day. The Justice Department's interim rule did not address the interaction between motions to reopen and voluntary departure periods. Additionally, while a petition for review does not stay removal unless ordered by the court, this situation differs from motions for reconsideration filed with the BIA. The circuit has the authority to stay the voluntary departure period during the review of removal orders, and any extension of the voluntary departure time is limited to specific officials as per 8 C.F.R. § 1240.26(f).
8 C.F.R. 1003.2(f) includes exceptions for motions under 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii)(A), which are not applicable in this case. The Ninth Circuit previously addressed this regulation in Baria v. Reno, 180 F.3d 1111 (1999), determining it pertains to the BIA's authority to rescind an alien's lawful permanent resident status. A rescission order must be executed by the government, similar to a deportation order, which aligns with the current analysis. The ruling in Azarte governs this aspect of the BIA's decision, rendering Barroso's equal protection claim unnecessary to evaluate.
The government claimed that Barroso's motion only cited ineffective assistance of counsel, but the record shows Barroso raised two arguments: inadequate representation and denial of his right to counsel of choice during the immigration hearing. The government acknowledged Barroso's statutory right to counsel without contesting its exhaustion. Although the right to counsel in immigration proceedings has constitutional implications, the court refrains from addressing them as Barroso's claim was presented as a statutory violation, which necessitates a ruling from the Board. The court aims to avoid premature constitutional analysis as supported by legal precedent.
