Marieli Cestari-Cuenca v. Eric Holder, Jr. , 425 F. App'x 645 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 04 2011
MOLLY C. DWYER, CLERK
U .S . CO UR T OF AP PE A LS
MARIELI CESTARI-CUENCA and No. 09-74034
OSCAR ADRIAN FLORES-
CAMACARO, Agency Nos. A095-560-921
A095-560-922
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
Petitioners Cestari-Cuenca and Flores-Camacaro, husband and wife, petition
for review of the Board of Immigration Appeals' (BIA's) order dismissing their
appeal from an Immigration Judge's (IJ's) denial of their application for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
withholding of removal, and relief under the Convention Against Torture (CAT).1
We have jurisdiction under 8 U.S.C. y 1252, and we grant the petition and remand
to the BIA for further proceedings.
Petitioner concedes that she filed her asylum application after the one-year
statutory deadline for filing had expired. 'The regulations provide that, to be
excused from the one-year filing deadline, an applicant must first demonstrate
extraordinary circumstances, and then show 'that those circumstances were directly
related to the alienùs failure to file the application within the one-year period, and
that the delay was reasonable under the circumstances.'' Waµµary v. Holder, 558
F.3d 1049, 1057 (9th Cir. 2009) (quoting 8 C.F.R. y 208.4(a)(5)). For the reasons
discussed below, we conclude that the BIA erred in ruling that Cestari-Cuenca
failed to establish extraordinary circumstances, and we remand so that the agency
can consider in the first instance whether her delay in filing was reasonable.
We conclude that Cestari-Cuenca exhausted her claim regarding
Tomaszewsµi's ineffective assistance of counsel before the IJ and BIA. See 8
U.S.C. y 1252(d)(1) ('A court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to the alien as of right.').
1
Flores-Camacaro sought asylum and withholding relief through his wife,
Cestari-Cuenca, who was treated as the lead applicant. Therefore, references to
Cestari-Cuenca include Flores-Camacaro unless otherwise noted.
2
We also conclude that Tomaszewsµi was ineffective in representing Cestari-
Cuenca and her husband. A petitioner seeµing to establish ineffective assistance of
counsel need only establish þthat counsel failed to perform with sufficient
competence, and . . . that she was prejudiced by counselùs performance.þ
Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). Cestari-Cuenca
intended to apply for asylum and would have done so but for the deficient legal
advice provided by Tomaszewsµi. This deficient advice prejudiced Cestari-Cuenca
when she missed the one-year deadline in which to file an application for asylum
after entering the country. See 8 U.S.C. y 1158 (a)(2)(B).
Tomaszewsµi's ineffective assistance constituted extraordinary
circumstances that were directly related to Cestari-Cuenca's failure to file a timely
asylum application. See id. at y 1158(a)(2)(D); 8 C.F.R. y 208.4(a)(5)(iii)
(extraordinary circumstances include ineffective assistance of counsel). Given
Cestari-Cuenca's undisputed testimony that her failure to file a timely application
was due to Tomaszewsµi's advice, the BIA's conclusion that she did not
demonstrate 'extraordinary circumstances' was not supported by substantial
3
evidence. See Viridiana v. Holder, 630 F.3d 942 (9th Cir. 2011); Lopez v. INS,
184 F.3d 1097 (9th Cir. 1999).2
Because of its determination that Cestari-Cuenca did not establish
extraordinary circumstances, the BIA did not expressly address the separate
question of whether her delay in filing her asylum application after learning of
Tomaszewsµi's fraud was reasonable under the circumstances. See Waµµary, 558
F.3d at 1058 ('[T]he regulations maµe clear that the reasonableness determination
[under 8 C.F.R. y 208.4(a)(5)] must be made 'under the circumstances' on a case-
by-case basis.'). To the extent the BIA's decision could be construed as
determining that Cestari-Cuenca's delay was unreasonable, the record evidence is
insufficient to support any such ruling. At the asylum hearing, the IJ cut off
Cestari-Cuenca's attempt to explain the interactions between petitioners and
Salazar during the time after Tomaszewsµi's fraud was discovered. Moreover, it
was unrealistic to expect Salazar's associate to develop vigorously the facts that
would establish his own firm's ineffectiveness. Whether Salazar and his associates
2
Cestari-Cuenca's failure to comply with the requirements of 8 C.F.R. y
208.4(a)(5)(iii)(A)-(C), see also Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), does not preclude her extraordinary circumstances argument because
Tomaszewsµi's ineffectiveness is clear on the face of the record and because she
had already been disbarred at the time Cestari-Cuenca and her husband discovered
the fraud. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir. 2000).
4
provided ineffective assistance of counsel and whether such assistance was the
cause of any delay can be addressed on remand.
Accordingly, on remand, the agency should fully develop the record
regarding the circumstances of Cestari-Cuenca's delay in filing her asylum
application and, if warranted, the merits of her asylum claim. We also remand the
claims for withholding of removal, and relief under CAT so that petitioners, with
the assistance of their new counsel, may offer additional evidence and argument
regarding past persecution, withholding of removal, and relief under CAT.
PETITION GRANTED and REMANDED for further proceedings
5
FILED
Cestari-Cuenca v. Holder, 09-74034 APR 04 2011
IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U .S . CO UR T OF AP PE A LS
In order to be excused from complying with the one-year time bar for
applications for asylum, Cestari-Cuenca and Flores-Camacaro (Petitioners) were
required to show that extraordinary circumstances prevented them from filing a
timely asylum application. See 8 U.S.C. y 1158(a)(2)(B), (D); see also 8 C.F.R.
y 208.4(a)(5). Petitioners attempted to show that Tomaszewsµi's ineffective
assistance was the cause of their untimeliness, but as the IJ and BIA held,
Petitioners failed to establish the existence of extraordinary circumstances and did
not offer any explanation for the 17-month delay between the revelation of
Tomaszewsµi's ineffective assistance in February 2002 and the tardy filing of their
asylum applications in July 2003. See 8 C.F.R. y 208.4(a)(5). Accordingly, the
BIA properly denied their asylum claim. See Husyev v. Muµasey, 528 F.3d 1172,
1181-82 (9th Cir. 2008).
On appeal, and for the first time, Petitioners argue that the 17-month delay
was caused by Salazar's ineffective assistance in failing to file their asylum
applications. Petitioners did not exhaust that argument before the IJ or the BIA, as
they were required to do. 8 U.S.C. y 1252(d)(1). Petitioners introduced their
ineffective assistance of counsel claim against Salazar in their second motion to
1
reopen, but that claim was limited to Salazar's failure to file a timely direct appeal
to the BIA's January 28, 2005 order, and his failure to inform them that their
voluntary departure had not been tolled. Because Petitioners did not offer any
explanation for the 17-month delay to the IJ and BIA, and did not argue that
Salazar's ineffective assistance in failing to file their asylum applications was the
cause of that delay, those arguments are not exhausted, and we lacµ jurisdiction to
consider them. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
Accordingly, I respectfully dissent.
2