Sergio Calderon-Rosas v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
19-2332
________________
SERGIO CALDERON-ROSAS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
________________
On Appeal from the Board of Immigration Appeals
(Agency No. A215-589-441)
Immigration Judge: Kuyomars Q. Golparvar
________________
Argued January 23, 2020
Before: GREENAWAY, JR., KRAUSE, and RESTREPO,
Circuit Judges
(Opinion filed: April 27, 2020)
Petra D. Fist [ARGUED]
P & D Solutions
1209 Kirkwood Highway
Wilmington, DE 19805
Counsel for Petitioner
Christin M. Whitacre [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________________
OPINION OF THE COURT
________________________
KRAUSE, Circuit Judge.
Immigration law is a field in which fair, accurate fact-
finding is of critical importance. The need in immigration
proceedings for effective attorneys who can competently
marshal the evidence on each side is therefore of
commensurate importance. Yet aliens—often poor, often non-
English speaking—are disproportionately saddled with low-
quality counsel, and the consequences can be drastic. This is a
case in point. Petitioner Sergio Calderon-Rosas paid a now-
disbarred attorney to represent him in removal proceedings,
and Calderon-Rosas was ordered deported after that attorney
failed to present key evidence supporting his application for
cancellation of removal. Calderon-Rosas sought a new
hearing, arguing that he was deprived of due process by, among
other things, his attorney’s ineffective assistance, but the Board
2
of Immigration Appeals (BIA) denied his claims. We must
decide whether we have jurisdiction to review due process
claims where a petitioner, like Calderon-Rosas, seeks only
discretionary relief—and if so, whether Calderon-Rosas’s
claims have merit. Because we conclude that we have
jurisdiction and Calderon-Rosas plainly presents a meritorious
ineffective-assistance claim, we will vacate the Board’s
decision and remand.
I. FACTUAL BACKGROUND 1
Calderon-Rosas, a Mexican national, initially entered
the United States in 2001. He has lived in the United States
since 2001. Though he and his wife lack lawful immigration
status, their three children are U.S. citizens. Before he was
detained, Calderon-Rosas had been a reliable and well-liked
contractor in the Norristown, Pennsylvania, area for eleven
years. His neighbors consider him “pleasant and sociable” and
his children “well dressed and polite.” JA 379. At least until
their father’s detention by immigration authorities, the children
were successful students at the local public schools, and the
whole family was baptized in the Saint Patrick Church of
Norristown, Pennsylvania, whose pastor considers them
“hardworking, honest and compassionate.” JA 370.
Yet in 2018, Calderon-Rosas was charged with a DUI—
and while those charges were later dismissed, the Government
nonetheless initiated removal proceedings. Desirous of
remaining in this country, Calderon-Rosas hired attorney
1
The facts here are drawn from the transcript of the
removal hearing, the agency’s decisions, and evidentiary
attachments to Calderon-Rosas’s administrative filings.
3
Douglas Grannan to represent him, and Grannan represented
Calderon-Rosas at his removal hearing before an Immigration
Judge (IJ). Grannan, however, was ill suited to the task: He
would soon be disbarred for “multiple violations of the Rules
of Professional Conduct in seven separate client matters”
amounting to a “troubling pattern of neglect.” Office of
Disciplinary Counsel v. Grannan, No. 197 DB 2016, slip op.
at 83 (Pa. Sup. Ct. Disciplinary Bd. Apr. 3, 2019), report and
recommendation adopted per curiam, No. 2597 Disciplinary
Docket No. 3 (Pa. July 9, 2019) (suspending Grannan); Office
of Disciplinary Counsel v. Grannan, No. 177 DB 2019, slip op.
at 1 (Pa. Sup. Ct. Disciplinary Bd. Oct. 18, 2019), report and
recommendation adopted per curiam, No. 2660 Disciplinary
Docket No. 3 (Pa. Oct. 18, 2019) (disbarring Grannan). The
hallmarks of Grannan’s “pattern of neglect” were a lack of
client communication, a failure to submit appropriate
documents, and a wanton disregard for his client’s prospects of
obtaining relief. See, e.g., id. at 83, 85–93.
Grannan’s representation of Calderon-Rosas was as
poor as his record would predict. Calderon-Rosas sought to
present claims for asylum, pursuant to 8 U.S.C. § 1158, and
cancellation of removal, pursuant to 8 U.S.C. § 1229b(b). Yet,
although Calderon-Rosas spent over $7000 on Grannan’s
services, Grannan never visited him in detention, never
discussed his case with him over the phone, and never helped
Calderon-Rosas understand the requirements for obtaining the
relief he sought. Worse, Grannan failed to meaningfully
pursue Calderon-Rosas’s asylum application despite telling
Calderon-Rosas that he would do so. And most troubling of
all, Grannan did not obtain adequate medical records of
Calderon-Rosas’s children to support Calderon-Rosas’s
cancellation of removal application.
4
Not surprisingly, given the record before him, the IJ
denied relief on all claims. As for asylum, the IJ deemed
Calderon-Rosas’s application abandoned, so the hearing
proceeded only on Calderon-Rosas’s cancellation of removal
application. As for cancellation of removal, the IJ announced
at the outset of the hearing that he would focus on the eligibility
requirement that the petitioner demonstrate that a U.S. citizen
family member—in this case, Calderon-Rosas’s children—
would suffer “exceptional and extremely unusual hardship,” 8
U.S.C. § 1229b(b)(1)(D), if he were removed. In this respect,
Grannan argued that Calderon-Rosas’s oldest son had asthma,
but as the IJ readily noted, the documentation Grannan had
filed reflected that condition had been long under control such
that “overall [the children’s] health” appeared “good.” JA 21.
So while the IJ found that there “may even be extreme
hardships” to Calderon-Rosas’s children if he were deported—
among them a loss of childcare and a loss of family savings—
he found that their suffering would not meet the high threshold
of “exceptional and extremely unusual hardship” to qualify
Calderon-Rosas for cancellation. JA 21. Based on the
information then available to him, the IJ also held in the
alternative that he would have declined Calderon-Rosas’s
cancellation application as a matter of discretion.
After Calderon-Rosas’s claims were denied, he
obtained new counsel and filed with the BIA both a motion to
remand to the IJ based on his original attorney’s ineffective
assistance before the IJ, and an appeal based on procedural due
process violations alleged to have occurred during the IJ
hearing. In support of the motion to remand and as required by
regulation, 8 C.F.R. § 1003.2, Calderon-Rosas submitted new
evidence, including medical records for his three children,
5
which demonstrated that his older son suffered from PTSD and
a persistent and chronic adjustment disorder with symptoms of
depressed mood and anxiety; his daughter also suffered from
depression; and his younger son had “special needs” due to a
speech delay.
The BIA denied the motion to remand and dismissed
Calderon-Rosas’s appeal. As to the motion to remand, the BIA
explained only that it “conclude[d] that [Calderon-Rosas] ha[d]
not established that he was prejudiced by his prior counsel [sic]
alleged ineffectiveness” because he “ha[d] not established
what additional corroboration he would have submitted that
would have impacted the outcome of the case.” JA 8–9. At
the same time that it faulted him for failing to offer new
evidence of corroboration, however, the BIA stated that “[t]o
the extent that [Calderon-Rosas] seeks to submit new evidence
on appeal in the form of evidence regarding his ineffective
assistance of counsel claim . . . we are without authority to
consider new evidence offered for the first time on appeal.” JA
9. The BIA also found Calderon-Rosas’s appeal of the IJ’s
decision on procedural due process grounds meritless.
Calderon-Rosas timely petitioned for our review of
both the BIA’s denial of his motion to remand and its dismissal
of his appeal. He contends that the BIA abused its discretion
in denying his motion to remand on grounds of ineffective
assistance of counsel and that it erred in dismissing his
procedural due process claims.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction over the motion to remand
under 8 C.F.R. § 1003.2(a), and we have jurisdiction to review
6
its denial under 8 U.S.C. § 1252(a). We review the denial of a
motion to remand for abuse of discretion, but “questions of
law, such as whether the BIA applied the correct legal standard
in considering the motion to [remand] and the underlying claim
of denial of due process, are . . . reviewed de novo.” Fadiga v.
Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007).
The BIA had jurisdiction over the appeal of the IJ’s
decision under 8 C.F.R. § 1003.1(b)(3), and we have
jurisdiction to review its dismissal under 8 U.S.C. § 1252(a).
We review its legal rulings de novo and its factual findings for
substantial evidence. Huang v. Att’y Gen., 620 F.3d 372, 379
(3d Cir. 2010).
III. DISCUSSION
Calderon-Rosas contends that he was denied due
process because he received ineffective assistance of counsel
in proceedings before the IJ and because the IJ disregarded
various procedural regulations. The Government opposes
Calderon-Rosas’s claims on the merits, but also, as a threshold
matter, challenges our jurisdiction, arguing that petitioners
seeking discretionary relief cannot assert procedural rights
under the Due Process Clause in this Court because they lack
a protected liberty or property interest in such relief. Below,
we first ascertain our jurisdiction 2 before addressing Calderon-
Rosas’s ineffective-assistance and procedural due process
claims.
2
We “always ha[ve] jurisdiction to determine [our]
jurisdiction.” Orie v. Dist. Att’y Allegheny Cty., 946 F.3d 187,
190 n.7 (3d Cir. 2019) (quoting Zambelli Fireworks Mfg. Co.
v. Wood, 592 F.3d 412, 418 (3d Cir. 2010)).
7
A. Jurisdiction
Before we address the merits of Calderon-Rosas’s
claims, we must address a threshold question: Do we have
jurisdiction over ineffective assistance of counsel or procedural
due process claims—both of which flow from the Fifth
Amendment’s Due Process Clause in the immigration context,
Fadiga, 488 F.3d at 155—made by a petitioner seeking
discretionary relief? The question arises because, in this
context, “[o]ur jurisdiction . . . is narrowly circumscribed in
that it is limited to colorable [constitutional] claims or
questions of law,” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d
Cir. 2010) (emphasis added) (internal quotation marks and
citation omitted); see also 8 U.S.C. § 1252(a)(2)(B), (D), and
the Government asserts that petitioners cannot state any
cognizable constitutional claim under the Due Process Clause
because they lack a protected interest in discretionary relief.
The government’s argument, however, is one we have
squarely rejected. We long ago recognized that due process
claims can be asserted by petitioners seeking discretionary
relief because “Congress instructed the Attorney General to
establish an asylum procedure,” and “[w]hen Congress directs
an agency to establish a procedure . . . it can be assumed that
Congress intends that procedure to be a fair one.” Marincas v.
Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum
claim). “[F]airness,” we explained, “mandate[s] that the
asylum procedure promulgated by the Attorney General
provide the most basic of due process.” Id.; see also Cham v.
Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough
Cham has no constitutional right to asylum, he was entitled, as
a matter of due process, to a full and fair hearing on his
application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74
8
(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that
counsel’s ineffectiveness was a denial of due process.
Accordingly, we may analyze the claim, at least within the
parameters of due process.”).
More recently, in Serrano-Alberto v. Attorney General,
859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over
claims for discretionary relief, we reiterated that “petitioners
must receive a full and fair hearing that allows them a
reasonable opportunity to present evidence on their behalf, and
a decision on the merits of their claim by a neutral and impartial
arbiter.” Id. at 213 (internal quotation marks and citations
omitted). That procedural due process right, we explained, is
comprised of “three key protections” in immigration
proceedings: “(1) ‘factfinding based on a record produced
before the decisionmaker and disclosed to him or her’; (2) the
opportunity to ‘make arguments on his or her own behalf’; and
(3) ‘an individualized determination of his [or her] interests.’”
Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003)
(en banc)). In short, “[t]hroughout all phases of deportation
proceedings, petitioners must be afforded due process of law.”
Id.
As our case law likewise establishes, ineffective
assistance of counsel claims are no less cognizable by
petitioners seeking discretionary relief. It is by now beyond
question that the Due Process Clause guarantees aliens the
right to effective assistance of counsel in removal proceedings.
Fadiga, 488 F.3d at 155; Matter of Lozada, 19 I. & N. Dec.
637, 638 (BIA 1988). And as with procedural due process
claims, we have never before discriminated among ineffective
assistance of counsel claims based on whether the petitioners
raising them sought discretionary or mandatory relief. See,
9
e.g., Filja v. Gonzales, 447 F.3d 241, 250, 256 (3d Cir. 2006)
(granting ineffective-assistance claim and remanding to the
BIA for consideration of petitioner’s claims for relief). That is
because, as the Second Circuit has explained, “[r]uling on an
ineffective assistance of counsel claim does not require us to
substitute our discretion for that of the agency; it is simply a
determination that the alien was not given a fair hearing
because of counsel’s errors.” Omar v. Mukasey, 517 F.3d 647,
650 (2d Cir. 2008) (per curiam).
Our recognition of due process claims by petitioners
seeking discretionary relief is consistent with bedrock
principles of Supreme Court case law. The Supreme Court has
explained that “the Fifth Amendment entitles aliens to due
process of law in deportation proceedings,” Reno v. Flores,
507 U.S. 292, 306 (1993), because “the Due Process Clause
applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful,
temporary, or permanent,” Zadvydas v. Davis, 533 U.S. 678,
693 (2001). Thus, “aliens who have once passed through our
gates, even illegally, may be expelled only after proceedings
conforming to traditional standards of fairness encompassed in
due process of law.” Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 212 (1953); see also Wong Yang Sung v.
McGrath, 339 U.S. 33, 50 (1950) (“When the Constitution
requires a hearing, it requires a fair one, one before a tribunal
which meets at least currently prevailing standards of
impartiality.”). Our longstanding recognition of the right to a
fundamentally fair hearing, Serrano-Alberto, 859 F.3d at 213,
simply echoes these propositions.
Surprisingly, however, our sister Circuits range the
gamut on whether this right extends to petitioners seeking
10
discretionary relief. 3 And relying on some of those out-of-
Circuit opinions, see, e.g., Rivera v. Sessions, 903 F.3d 147,
3
The Eighth and Eleventh Circuits either decline
jurisdiction over procedural due process and ineffective-
assistance claims for discretionary relief, or have decided that
such claims are not cognizable in connection with
discretionary relief proceedings. Pinos-Gonzalez v. Mukasey,
519 F.3d 436, 441 (8th Cir. 2008) (procedural due process);
Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir.
2008); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808–09 (8th
Cir. 2003) (ineffective assistance); Mejia Rodriguez v. Reno,
178 F.3d 1139, 1148 (11th Cir. 1999) (ineffective assistance).
The First and Fifth Circuits exercise jurisdiction over
ineffective-assistance claims, but have taken the same
approach as the Eighth and Eleventh Circuits on procedural
due process claims. Mejia v. Whitaker, 913 F.3d 482, 490 (5th
Cir. 2019) (due process); Diaz v. Sessions, 894 F.3d 222, 226–
27 (5th Cir. 2018) (ineffective assistance); Rivera v. Sessions,
903 F.3d 147, 151 (1st Cir. 2018) (due process); Hernandez v.
Reno, 238 F.3d 50, 55–56 (1st Cir. 2001) (ineffective
assistance). The Tenth Circuit exercises limited jurisdiction
over procedural due process claims, Salgado-Toribio v.
Holder, 713 F.3d 1267, 1271 (10th Cir. 2013), and has not
addressed ineffective-assistance claims. The Second Circuit
exercises jurisdiction over ineffective-assistance claims, Omar
v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008) (per curiam), and
has not addressed procedural due process claims. The Seventh
Circuit exercises jurisdiction over procedural due process
claims and the performance prong of ineffective-assistance
claims. Zambrano-Reyes v. Holder, 725 F.3d 744, 750–51 (7th
Cir. 2013) (ineffective assistance); Delgado v. Holder, 674
F.3d 759, 766 (7th Cir. 2012) (due process). The Ninth Circuit
11
151 (1st Cir. 2018), the Government argues that we lack
jurisdiction to review any procedural due process or ineffective
assistance of counsel claims made by aliens seeking
discretionary relief. The crux of its theory is that a “claim of
deprivation of due process requires that a cognizable liberty or
property interest be at stake,” and “discretionary forms of relief
do not rise to the level of such a protected interest.” Rivera,
903 F.3d at 150–51 (internal quotation marks and citations
omitted). The only cognizable liberty interest the Government
would recognize is in the specific procedures provided by
Congress, regardless of whether those procedures are
administered fairly and impartially.
For the reasons previously stated, this argument is
foreclosed by our case law. See Marincas, 92 F.3d at 203;
Serrano-Alberto, 859 F.3d at 213. But more fundamentally, it
conflates the existence of a statutory entitlement with the
fairness of the process by which a petitioner may be deprived
of it. As an initial matter, a “liberty interest may arise from . . .
an expectation or interest created by state laws or policies,”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and “a person’s
liberty is equally protected, even when the liberty itself is a
statutory creation of the State,” Wolff v. McDonnell, 418 U.S.
539, 558 (1974); Meachum v. Fano, 427 U.S. 215, 226 (1976).
But it is equally true that “[w]hen Congress directs an agency
to establish a procedure . . . it can be assumed that Congress
exercises jurisdiction over both procedural due process and
ineffective-assistance claims. Fernandez v. Gonzales, 439
F.3d 592, 602–03 (9th Cir. 2006) (ineffective assistance);
Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998) (due
process).
12
intends that procedure to be a fair one.” Marincas, 92 F.3d at
203. 4
The Government’s position, moreover, would lead to
absurd results: At oral argument, for example, the
Government went so far as to posit that, so long as an alien
seeking only discretionary relief had the opportunity to
reasonably present evidence, he would have no cognizable due
process claim—and hence, no recourse to the federal courts—
even if the IJ denied that relief “based on the flip of a coin.”
Tr. 43. We think that conception of due process is not only
inconsistent with our case law but would be anathema to our
Founding Fathers. See Chehazeh v. Att’y Gen., 666 F.3d 118,
130 (3d Cir. 2012) (stating that “substantive liberty rights and
. . . due process rights” are both “areas that courts often are
called upon to protect”).
In sum, petitioners seeking discretionary relief are
entitled to fundamentally fair removal proceedings, which
constitutes a protected interest supporting a due process claim.
Because Calderon-Rosas’s due process claims are also
colorable on their merits, as discussed below, our review of
those claims is a proper exercise of jurisdiction.
4
Ironically, even adopting the Government’s
constrained view of the process that is due to petitioners
seeking discretionary relief, the ineffective assistance of
counsel claim asserted here would be cognizable. That is
because Congress has also provided a statutory right to
counsel, see 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 1240.3,
and to present evidence, see 8 U.S.C. § 1229a(b)(4)(B).
13
B. Ineffective Assistance of Counsel
After the IJ denied relief, Calderon-Rosas moved to
remand his proceedings on grounds of ineffective assistance of
counsel. The BIA denied the motion, and he appealed. 5 He
contends that Grannan’s representation prevented him from
obtaining a fundamentally fair hearing on both his cancellation
of removal and asylum claims. We discuss each contention in
turn.
1. Cancellation of Removal
Calderon-Rosas’s motion to remand alleged that
Grannan’s failure to adduce sufficient evidence of his
children’s health conditions deprived him of a fundamentally
fair hearing on his cancellation of removal claim. The BIA
denied the motion. That decision was an abuse of discretion in
two respects: It misapplied the legal standard and it was wrong
on the merits.
First, the BIA misapplied the standard for assessing
whether Calderon-Rosas had demonstrated he was prejudiced
by Grannan’s performance. The BIA held that Calderon-Rosas
had not demonstrated that Grannan’s performance “impacted
the outcome of the [removal proceeding].” JA 9. But the
familiar standard for prejudice in an ineffective-assistance
claim is whether there is a “reasonable probability” that “the IJ
would not have entered an order of removal absent counsel’s
errors.” Fadiga, 488 F.3d at 159. That does not require a
5
Our jurisdiction under 8 U.S.C. § 1252 embraces
review of denials of motions to reopen. Guo v. Ashcroft, 386
F.3d 556, 560–61 (3d Cir. 2004).
14
petitioner to show counsel’s deficient performance did, in fact,
affect the outcome of the case, or even that a different outcome
was “more likely than not”; instead, we have cautioned,
“reasonable probability” means merely a “significant
possibility.” United States v. Payano, 930 F.3d 186, 193 n.5
(3d Cir. 2019). We have also admonished that in applying this
standard, while the BIA need not “write an exegesis on every
contention,” it must “consider the issues raised, and announce
its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.”
Filja, 447 F.3d at 256 (internal quotation marks and citation
omitted).
Here, the BIA failed to do so, and its application of the
“reasonable probability” standard was erroneous. The entirety
of its explanation for denying Calderon-Rosas’s motion to
remand was as follows: “[T]he respondent has not established
what additional corroboration he would have submitted that
would have impacted the outcome of the case. Moreover, we
note that the Immigration Judge did not deny the respondent’s
application for cancellation of removal on the basis of a lack of
corroboration.” JA 9. As in Filja, “there is nothing in [this]
one paragraph devoted to the ineffective assistance of counsel
claim that is suggestive of [a sufficient] review or that [the
BIA] grasped [Calderon-Rosas’s] serious allegations
supporting his ineffective assistance claim.” 447 F.3d at 256.
Indeed, the BIA entirely failed to discuss the significance of
the hundred-plus pages of new evidence Calderon-Rosas
submitted. Instead, paradoxically, it simultaneously faulted
Calderon-Rosas for “not establish[ing] what additional
corroboration he would have submitted,” JA 9, despite clear
briefing and evidence to the contrary, and pronounced that it
was “without authority to consider new evidence offered for
15
the first time on appeal,” id., despite clearly applicable law to
the contrary, 8 C.F.R. § 1003.2(c)(1) (requiring submission of
new evidence to support motion to remand). To the extent the
BIA did take account of the new evidence that it both failed to
identify and incorrectly claimed it could not consider, it also
misapprehended its significance: Calderon-Rosas did not seek
to “corroborat[e]” the evidence he had submitted at the IJ
hearing, JA 9; instead, he sought to introduce wholly new
evidence of his children’s health conditions. In short, the
BIA’s woefully inadequate reasoning fell well short of
demonstrating that it “reviewed the record and grasped the
movant’s claims.” Filja, 447 F.3d at 256.
If the BIA had applied the correct legal standard to the
evidence set forth by Calderon-Rosas, it would have
concluded, as we do, that his motion to remand should have
been granted. 6 An alien seeking to reopen his immigration
proceedings based on ineffective assistance of counsel must
demonstrate that “competent counsel would have acted
otherwise” and that he was “prejudiced by counsel’s poor
performance.” 7 Fadiga, 488 F.3d at 157 (citations omitted).
6
We have no need to remand for the BIA to reconsider
its erroneous ruling. As in Fadiga, “it would be an act of
supererogation for this [C]ourt to ask the BIA to determine
whether [Grannan’s] representation fell below minimal
professional standards, thereby prejudicing [Calderon-
Rosas],” because the “full record of [Grannan’s] representation
is before us, and we are competent to assess what transpired.”
Fadiga, 488 F.3d at 162.
7
He must also meet certain procedural requirements set
forth by the BIA for ineffective-assistance claims, see Lozada,
16
Of Grannan’s incompetence there can be no doubt. We have
held that an attorney’s failure to produce easily available
evidence supporting a claim for immigration relief falls below
the constitutionally required standard of performance. See
Fadiga, 488 F.3d at 162. Such a failure to produce evidence
was precisely Grannan’s error in the present case: He failed to
adduce medical records that would have been easily obtainable
with proper notice to Calderon-Rosas’s family and that would
have supported Calderon-Rosas’s application for cancellation
of removal. Indeed, the Government does not even argue that
Grannan’s performance met the constitutional minimum.
Rather, the disputed question is whether Calderon-
Rosas was prejudiced by Grannan’s errors. Again, the answer
without question is yes. As we have explained, Calderon-
Rosas must show only a “reasonable probability” that his
cancellation of removal claim would have been granted had
Grannan submitted evidence of his children’s medical
hardships. Fadiga, 488 F.3d at 159. In determining whether
Calderon-Rosas was eligible for cancellation of removal, the IJ
expressly announced that he would focus his attention on the
question of whether “exceptional and extremely unusual
hardship” would result for Calderon-Rosas’s U.S. citizen
children if he were removed. JA 253. And the seminal case
construing that standard explains that a “strong” case of such
hardship is presented by an alien with “a qualifying child with
very serious health issues.” In re Monreal-Aguinaga, 23 I. &
N. Dec. 56, 63 (BIA 2001). Yet the only medical evidence
Grannan submitted related to a mild asthmatic condition in
Calderon-Rosas’s older son that was “under control,” which
19 I. & N. Dec. at 639, but the Government does not dispute
that Calderon-Rosas satisfied those requirements here.
17
led the IJ to conclude that the children’s health was generally
“good,” JA 21. Grannan failed to adduce evidence that
Calderon-Rosas’s older son suffered from PTSD and a
persistent and chronic adjustment disorder with symptoms of
depressed mood and anxiety; that his daughter also suffered
from depression; and that his younger son suffered from a
speech delay.
Constitutionally adequate counsel would have
introduced this evidence and, given the relevant precedent and
the IJ’s focus on hardship to Calderon-Rosas’s children and on
their “good” health, there is a reasonable probability the IJ
would have granted cancellation. Calderon-Rosas is therefore
entitled to a new hearing on his cancellation application. 8
2. Asylum
Calderon-Rosas also contends that Grannan’s
ineffective assistance entitles him to a new hearing on his
asylum claim. In support of this contention, he points to
Grannan’s failure to file a facially adequate asylum application
and the IJ’s consequent ruling that the application was
abandoned. While surely deficient performance on Grannan’s
8
Though the IJ also held in the alternative that he would
have denied Calderon-Rosas’s application as a matter of
discretion, his attention to Calderon-Rosas’s children’s
hardship, particularly with respect to their health, suggests a
reasonable probability that he would not have reached the same
conclusion had the medical evidence been introduced. Thus,
even if the Government had asked us to affirm on this basis,
which it did not, we could not do so.
18
part, we are not persuaded that counsel’s error prejudiced
Calderon-Rosas.
A successful asylum applicant must demonstrate that he
has a “well-founded fear of future persecution . . . motivated
by a statutorily protected ground, namely the alien’s race,
religion, nationality, political opinion, or membership in a
particular social group.” Huang v. Att’y Gen., 620 F.3d 372,
380 (3d Cir. 2010). Here, however, evidence in the record does
not suggest that Calderon-Rosas can make that showing.
Indeed, Calderon-Rosas has not seriously attempted to
substantiate his asylum claim, relying instead on the
unsupported proposition that the prejudice requirement in
ineffective-assistance cases can be waived in particularly
egregious circumstances.
The closest support we can find for this proposition is a
Ninth Circuit rule that an attorney’s “failure to file a necessary
document creates a presumption of prejudice” which is
rebutted where “the petitioner lacks plausible grounds for
relief.” Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 979
(9th Cir. 2007) (internal quotation marks and citation omitted).
We have not adopted that presumption, and we need not do so
today: Even if it did apply, it would be rebutted here; the
entirety of Calderon-Rosas’s asylum evidence consists of an
affidavit from his wife stating that she was sexually assaulted
in Mexico many years ago and fears returning. That
circumstance, while no doubt traumatic, pertains to Calderon-
Rosas’s wife’s fear of persecution, not his own, and does not
establish membership in a cognizable “particular social
group.” Calderon-Rosas therefore is not entitled to a new
asylum hearing due to ineffective assistance of counsel.
19
C. Procedural Due Process
Calderon-Rosas also alleges that six other due process
violations occurred at his IJ hearing. Four of these claims,
however, were not exhausted to the BIA as required for us to
review them. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d
Cir. 2005).
That leaves two exhausted procedural due process
claims: the admission of Calderon-Rosas’s inaccurate tax
returns as evidence and the lack of an interpreter in the first
part of his hearing. Neither, however, rendered the
proceedings fundamentally unfair. See Serrano-Alberto, 859
F.3d at 213. Even granting Calderon-Rosas’s contention that
Grannan’s poor planning and communication led him to hastily
prepare and submit mistake-ridden tax returns into evidence,
no prejudice resulted because the IJ did not consider them a
negative factor. And while the IJ should have involved an
interpreter from the outset of the hearing, this error did not
render the proceedings fundamentally unfair. Indeed, at oral
argument, Calderon-Rosas’s counsel was unable to identify
any portion of the hearing transcript that suggested Calderon-
Rosas was prejudiced by the interpreter’s initial absence. In
the absence of prejudice, Calderon-Rosas was not deprived of
due process by the alleged errors. 9
9
We do not find the presumption of prejudice
articulated in Leslie v. Att’y Gen., 611 F.3d 171, 178 (3d Cir.
2010) applicable to either of Calderon-Rosas’s due process
arguments as presented. Because, as Calderon-Rosas
acknowledges, an interpreter was present for all but the
introductory portion of the IJ hearing in this case, we need not
decide whether the absence of an interpreter for the entirety or
20
IV. CONCLUSION
For the foregoing reasons, we will reverse the BIA’s
denial of Calderon-Rosas’s motion to remand and remand for
a new hearing on his application for cancellation of removal,
and we will affirm the BIA’s dismissal of Calderon-Rosas’s
asylum claim.
even the substantive portion of a petitioner’s hearing would
trigger Leslie’s presumption.
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