Ricardo Sanchez v. Jefferson B. Sessions III , 894 F.3d 858 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1673
RICARDO SANCHEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of
The Board of Immigration Appeals.
No. A205-830-444
ARGUED DECEMBER 1, 2017 — DECIDED JULY 5, 2018
Before BAUER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Ricardo Sanchez seeks review of an
order of the Board of Immigration Appeals denying his motion
to reopen its prior decision denying him discretionary cancella-
tion of removal. See 8 U.S.C. § 1229b(1). Because Sanchez’s
petition presents questions of law, we have jurisdiction to
2 No. 17-1673
review the Board’s order and, for the reasons that follow, we
grant his petition and remand to the Board for further proceed-
ings.
I.
Sanchez, aged 44, is a native and citizen of Mexico who has
lived in the United States without documentation for more
than 25 years. He is married to another Mexican citizen and
national (also undocumented) who lives here in the United
States with him; together, they have three U.S.-citizen children
aged nine, seven, and two and one-half years. Their youngest
child has experienced developmental delays in his motor skills
and has been prescribed therapy to address those delays.
Sanchez has been arrested and convicted for driving under
the influence on four separate occasions between 1997 and
2013. In December 2013, after receiving a one-year suspended
sentence for the last of his convictions, Sanchez was appre-
hended by immigration officials and served with a notice to
appear in a removal proceeding for being in the country
illegally. See 8 U.S.C. § 1182(a)(6)(A)(i).
Sanchez subsequently admitted the facts set forth in the
notice to appear and conceded his removability; but he applied
for cancellation of removal on the basis of the extraordinary
hardship that he believed his removal would cause to his two
children (at that time his youngest had not yet been born). An
immigration judge conducted a hearing on the merits of his
application at which Sanchez was the sole witness. Sanchez
was represented by counsel at the hearing.
No. 17-1673 3
In an oral decision, the immigration judge denied Sanchez’s
application for cancellation of removal and ordered him
removed to Mexico. A.R. 368, 369–81. The judge found in the
first instance that Sanchez lacked the “good moral character”
that is a prerequisite to cancellation of removal, see 8 U.S.C.
§ 1229b(b)(1)(B), in view of, inter alia, Sanchez’s multiple DUI
convictions as well as his decision to ignore court orders to
appear and respond to two of the DUI charges, which resulted
in multi-year delays in resolving those cases. (Sanchez testified
that he failed to appear out of fear he would be deported.).
A.R. 376–78. The judge also found, in the alternative, that
Sanchez had “simply failed to put a case forward” for the
notion that his removal from the country would impose an
“exceptional and extremely unusual hardship” upon his
children. A.R. 379; see § 1229b(b)(1)(D). Sanchez had presented
no testimony regarding his sons, including any medical or
educational needs they might have, nor was it even clear
whether his family would accompany him to Mexico in the
event of his removal. A.R. 379–80. Finally, and also in the
alternative, the judge concluded that even if Sanchez qualified
for cancellation of removal, he did not merit that discretionary
relief. The judge identified as positive factors the presence of
Sanchez’s spouse and children in the United States and the
financial support he provided to his family members in
Mexico. Sanchez had a history of steady employment and had
testified that he paid taxes, but the judge pointed out that there
was nothing in the record to show that he had ever filed an
income tax return. On balance, the judge found that the factors
supporting Sanchez’s request for cancellation were insufficient
4 No. 17-1673
to outweigh his history of disregarding traffic and safety laws,
as evidenced by his multiple DUI convictions. A.R. 379–80.
Sanchez, represented by new counsel, unsuccessfully
appealed the adverse decision to the Board. Sanchez argued
both that the Immigration Judge erred on the merits of his
application for cancellation of removal and that his previous
attorney had been ineffective in preparing him to testify and in
presenting his application. The Board declined to reach the
ineffectiveness claim, noting that Sanchez had not submitted
the evidentiary materials that Matter of Lozada, 19 I. & N. Dec.
637 (B.I.A. 1988), overruling vacated by Matter of Compean, 25
I. & N. Dec. 1 (B.I.A. 2009), requires for such a claim. A.R. 186.1
As to the merits of the claim for cancellation of removal, the
Board concluded that Sanchez had not shown that his removal
would result in exceptional and extremely unusual hardship to
his qualifying family members. A.R. 185–86. In view of that
holding, the Board found it unnecessary to consider whether
Sanchez had the requisite good moral character to qualify for
cancellation of removal. A.R. 186.
Sanchez filed a motion asking the Board to both reconsider
and reopen its decision, but the Board again denied him relief.
1
Lozada requires: (1) that the motion be supported by an affidavit from the
respondent setting forth in detail the agreement that he entered into with
counsel with respect to the actions to be taken and what representations
counsel did or did not make to the respondent in that regard; (2) that
counsel be informed of the allegations leveled against him and be given an
opportunity to respond; and (3) that the motion reflect whether a complaint
has been filed with the appropriate disciplinary authorities with respect to
any violation of counsel's ethical or legal responsibilities, and if not, why
not. 19 I. & N. Dec. at 639.
No. 17-1673 5
Sanchez endeavored to correct the Lozada problem with his
ineffectiveness claim by attempting to fill in the gaps in his
supporting materials. He further argued that it was his prior
counsel’s ineffectiveness that prevented him from presenting
evidence that would establish his good moral character and
demonstrate the extraordinary hardship his removal would
pose to his children. The Board rejected Sanchez’s request to
reconsider its finding that his ineffectiveness claim failed in the
first instance to satisfy Lozada, noting that at the time of its
prior decision, Sanchez in fact had not complied with Lozada.
A.R. 3. As for the motion to reopen, the Board acknowledged
Sanchez’s belated effort to comply with Lozada. A.R. 4. But as
to the merits of the ineffectiveness claim, the Board concluded
that Sanchez had not shown that he was prejudiced by any
ineffectiveness on the part of his prior counsel. The Board
noted that its prior order had focused on the lack of proof that
Sanchez’s removal would impose the requisite degree of
hardship on his children, so the Board confined its analysis of
prejudice to that one aspect of Sanchez’s request for cancella-
tion of removal. A.R. 4. And as to that component, the Board
indicated it was not convinced that the evidence Sanchez
faulted his attorney for failing to present “would likely have
altered the outcome of [Sanchez’s] case with regard to the
hardship that would accrue to his children” in the event of his
removal. A.R. 4.
Sanchez then filed his petition to review the Board’s
decision.
6 No. 17-1673
II.
Sanchez presses two arguments in his challenge to the
Board’s decision denying his motion to reopen: (1) that the
Board assessed his ineffective-assistance-of-counsel claim using
the wrong legal standard as to the prejudice component of that
claim; and (2) the Board engaged in such a cursory analysis of
his ineffectiveness claim, devoid of reason and essentially
ignoring the evidence he presented in support of that claim,
that its decision amounts to an abuse of discretion.2 Because we
agree with Sanchez as to the first of these arguments, we need
not reach the second.
Before turning to the merits of Sanchez’s appeal, however,
we must pause to consider our jurisdiction. As a general
matter, whether to grant Sanchez cancellation of removal is a
discretionary decision that is beyond our jurisdiction to review.
E.g., Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir. 2016); see
8 U.S.C. § 1252(a)(2)(B)(i). And where we lack the power to
review the Board’s underlying order denying an alien this sort
of discretionary relief, we ordinarily lack the authority to
review the denial of a request to reconsider or reopen that
order. See Cruz-Mayaho v. Holder, 698 F.3d 574, 576 (7th Cir.
2012) (citing Martinez–Maldonado v. Gonzales, 437 F.3d 679, 683
(7th Cir.2006)); but see Calma v. Holder, 663 F.3d 868, 873–78 (7th
Cir. 2011) (judicial review of procedural ruling ancillary to
Board’s denial of underlying claim for discretionary relief is
2
Sanchez has not challenged the Board’s denial of Sanchez’s motion to
reconsider its prior ruling issue. Only the denial of his motion to reopen is
at issue in this appeal.
No. 17-1673 7
foreclosed only when rationale for procedural ruling estab-
lishes petitioner’s inability to prevail on underlying claim).3
Nevertheless, we do have authority to resolve any constitu-
tional or other legal issues presented by the Board’s handling
of the motion to reopen. § 1252(a)(2)(D). The government
agrees that the issues raised by Sanchez’s petition present legal
questions that fall within our jurisdiction. See Jezierski v.
Mukasey, 543 F.3d 886, 888 (7th Cir. 2008) (cognizable errors of
law include Board’s use of incorrect legal standard); Iglesias v.
Mukasey, 540 F.3d 528, 530–31 (7th Cir. 2008) (petitioner’s
contention that Board “completely ignored the evidence he
presented, as demonstrated by the lack of reasoned analysis in
its decision,” constituted reviewable question of law). We may
therefore turn to the merits of Sanchez’s first argument.
Sanchez asked the Board to reopen its prior ruling denying
him cancellation of removal on the ground that the attorney
who represented him before the Immigration Judge deprived
him of the effective assistance of counsel. Although Sanchez
3
Because we have jurisdiction to consider the legal questions presented by
Sanchez’s petition, we need not consider whether the Supreme Court’s
decision in Mata v. Lynch, 135 S. Ct. 2150, 2154–55 (2015), implicitly
overrules Martinez-Maldonado and similar cases and establishes our
jurisdiction to review any denial of a motion to reopen a removal proceed-
ing. See Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) (reading Mata
in that manner); see also Sanchez v. Sessions, 857 F.3d 757, 758–59 (7th Cir.
2017) (staying Sanchez’s removal pending resolution of his petition for
review and citing Mata as a possible, alternative basis for our jurisdiction,
but adding that government had not responded to Sanchez’s invocation of
Mata).
8 No. 17-1673
did not have a Sixth Amendment right to effective representa-
tion by counsel in the removal proceeding, he did have a Fifth
Amendment due process right to a fair hearing; and if his
counsel’s asserted errors resulted in a proceeding that was so
unfair as to have precluded Sanchez from reasonably present-
ing his case, then he was deprived of due process. See
Zambrano-Reyes v. Holder, 725 F.3d 744, 750 (7th Cir. 2013);
Lozada, 19 I. & N. Dec. at 638. The ineffectiveness claim re-
quired Sanchez to both identify the errors that prevented him
from presenting his case in favor of cancellation of removal
and to show that he was prejudiced. See, e.g., Mojsilovic v.
I.N.S., 156 F.3d 743, 749 (7th Cir. 1998). The prejudice prong
requires a showing that counsel’s errors “actually had the
potential for affecting the outcome of the proceedings.”
El-Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir. 2012) (quoting
Rapheal v. Mukasey, 533 F.3d 521, 533 (7th Cir. 2008)).
Without reaching the question of whether Sanchez’s former
counsel was, in fact, ineffective, the Board concluded that
Sanchez had failed to show that he was prejudiced by any
shortcomings in his attorney’s performance. Again, in the
Board’s words, it was “not persuaded that the evidence offered
in support of [Sanchez’s] ineffective assistance of counsel claim
would have likely altered the outcome of this case with regard
to the hardship that would accrue to his children.” A.R. 4.
The Board’s language indicates that it applied the wrong
standard in evaluating the prejudice component. As Sanchez
rightly puts it, the standard as the Board articulated it is one of
probability, when the correct standard as we have articulated
is one of possibility. The difference between the two is material.
No. 17-1673 9
The Board’s “would likely have altered the outcome” language
suggests that it was requiring Sanchez to show it was more
likely than not (i.e., a probability of more than 50 percent) that
the outcome of the removal proceeding would have been
favorable to Sanchez but for his counsel’s alleged missteps. But
in actuality, Sanchez needed only to establish that he would
have had a reasonable chance of prevailing had his counsel
provided him with competent representation. See Strickland v.
Washington, 466 U.S. 668, 693–94, 104 S. Ct. 2052, 2068 (1984)
(rejecting notion that criminal defendant alleging ineffective
assistance of counsel must show that the result of the trial more
likely than not would have been different but for his counsel’s
errors, noting that ineffectiveness claim calls into question
fairness and reliability of underlying proceeding, and thus
requires defendant to show only a reasonable probability that
result of proceeding might have been different); Miller v.
Anderson, 255 F.3d 455, 459–60 (7th Cir. 2001) (so long as
habeas petitioner had non-negligible chance of acquittal but for
trial counsel’s ineffectiveness, he was entitled to relief even if
likelihood of acquittal was less than 50 percent) (collecting
cases) , j. modified in part in other respects, 268 F.3d 485 (7th Cir.
2001); El-Gazawy, 690 F.3d at 860 (alien must show that “he
could have succeeded on the merits” but for his counsel’s
ineffectiveness).
The government points to certain language from some of
our own attorney-ineffectiveness and other due process cases
which could be read as being consistent with the language that
the Board used here and which, to the government’s mind,
suggests that the two different formulations of the standard are
interchangeable. For the most part, however, these cases
10 No. 17-1673
accurately recognize that the prejudice standard for due
process claims connotes the possibility rather than the proba-
bility of a different result. See, e.g., Silais v. Sessions, 855 F.3d
736, 745 (7th Cir. 2017), cert. denied, 138 S. Ct. 976 (2018) (in
order to establish prejudice resulting from due process
violation, petitioner must “produce some concrete evidence
indicating that the violation of a procedural protection actually
had the potential for affecting the outcome of … deportation
proceedings”) (emphasis added) (quoting Shahandeh-Pey v.
I.N.S., 831 F.2d 1384, 1389 (7th Cir. 1987)); Bathula v. Holder, 723
F.3d 889, 903 n.34 (7th Cir. 2013) (“To succeed on an ineffective
assistance claim the petitioners must demonstrate not only that
counsel’s performance was deficient, but that they ‘could have
succeeded on the merits’ of their claims but for counsel’s
defective performance”) (emphasis added) (quoting El-Gazawy,
690 F.3d at 860). Isolated use of language akin to “would have
altered the outcome” or “likely would have altered the
outcome” can be found in these cases, but when evaluated in
context, these references do not suggest that “would have” or
“likely would have” mean the same as “could have” or “might
have,” or that the Board’s phrasing of the standard in this case
is a correct articulation. As we read these cases, our use of
“would have altered” rather than “might have altered” simply
signaled our confidence that the due process violations alleged
in those cases made no difference at all to the result. To take
one example, in Bathula, the petitioners faulted their attorney
for not presenting their daughter’s testimony in support of
their requests for asylum or withholding of deportation. But
those requests had failed for want of proof of a nexus between
the acts of alleged persecution and the petitioners’ putative
No. 17-1673 11
social groups; and nothing in the prospective testimony of the
petitioners’ daughter would have cured that defect in the
petitioners’ case. Thus, as the petitioners were forced to
acknowledge, “the daughter’s testimony could not alter the
nexus finding and therefore would not have affected the asylum
and withholding decisions.” Id. at 905 (emphasis added).
By contrast, taking the Board’s order in this case at face
value, we cannot be confident it applied the correct prejudice
standard in a manner consistent with our precedents. Although
the Board cited (and parenthetically quoted from) Bathula for
the proper standard, in the one and only sentence of the
Board’s order actually analyzing prejudice, the Board’s own
words held Sanchez to the higher burden of showing that his
attorney’s alleged ineffectiveness “would likely have altered
the outcome” of the case. A.R. 4. That is an incorrect formula-
tion of the prejudice standard, and neither Bathula nor any
other precedent from this court genuinely supports that
formulation. The Board’s language suggests that it did not
appreciate the difference between requiring proof of a possibil-
ity rather than the probability of a different outcome. Indeed,
the Board used essentially the same language when it sepa-
rately evaluated Sanchez’s new-evidence claim, as to which
Sanchez indeed bore the “heavy burden” of showing that the
evidence in question would likely have produced a different
result. See A.R. 4, citing Matter of Coelho, 20 I. & N. Dec. 464, 472
(B.I.A. 1992); see also, e.g., De Soon Lin v. U.S. Att’y Gen., 602
F. App’x 789, 792 (11th Cir. 2015) (non-precedential decision);
Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014); Young Sun Shin
v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008); and see generally
Strickland v. Washington, supra, 466 U.S. at 694, 104 S. Ct. at 2068
12 No. 17-1673
(distinguishing proper standard for ineffectiveness claim from
standard for new-evidence claim). Had the Board, in evaluat-
ing the ineffectiveness claim, said more about that claim that
was consistent with the correct possibility standard, then
perhaps we could overlook the error in its articulation of the
standard. Cf. Floyd v. Hanks, 364 F.3d 847, 852–53 (7th Cir. 2004)
(habeas corpus relief not warranted where although state court
improperly referenced “reliability” in its assessment of
prejudice, its actual analysis of counsel’s conduct properly
focused on potential effect counsel’s actions had on outcome of
trial); Carter v. Duncan, 819 F.3d 931, 944–45 (7th Cir. 2016)
(same). But that is not the case.
As it is the Board that has the authority to decide whether
to reopen its prior decision on the question of cancellation of
removal, the appropriate remedy for the error is to remand this
matter to the Board for reconsideration in light of the correct
prejudice standard.
In view of our decision to remand, we need not address
Sanchez’s second argument as to the Board’s failure to address
his evidence and articulate a rationale for its conclusion that
Sanchez had not established prejudice resulting from his
attorney’s performance. We have every confidence that the
Board will rectify any such shortcoming when it re-evaluates
Sanchez’s ineffectiveness claim applying the correct standard
as to prejudice.
III.
For all of the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED to the Board for
further proceedings consistent with this opinion.