Juan Uribe-Santillan v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN GABRIEL URIBE-SANTILLAN, No. 13-72072
Petitioner, Agency No. A073-932-076
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2018
San Francisco, California
Before: WARDLAW and HURWITZ, Circuit Judges, and OLIVER,** District
Judge.
Juan Gabriel Uribe-Santillan, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen
removal proceedings because of ineffective assistance of counsel. Although the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
government concedes that prior counsel was ineffective, it argues his deficient
performance did not prejudice Uribe. Because we are not convinced that Uribe
lacked all “plausible grounds for relief,” see Hernandez-Mendoza v. Gonzales, 537
F.3d 976, 979 (9th Cir. 2007), we grant the petition and remand for further
proceedings.
A timely motion to continue the removal proceedings to allow Uribe to seek
adjustment of status could plausibly have been successful. In August 2012, when
the IJ deemed Uribe removable, his I-130 visa application had been pending for
more than seventeen years. See Malilia v. Holder, 632 F.3d 598, 606 (9th Cir.
2011) (concluding that the IJ abused his discretion by denying a continuance even
though the visa application process could have taken “months or even years”); see
also Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988) (“[A] myopic insistence upon
expeditiousness in the face of a justifiable request for delay’ can render the alien’s
statutory rights merely ‘an empty formality.’” (quoting Rios-Berrios v. INS, 776
F.2d 859, 862 (9th Cir. 1985))). And, although Uribe’s visa application was not
current at the time of the removal hearing, he was not at fault for the processing
delay. See Malilia, 632 F.3d at 606 (“[Petitioner] should not have to bear the
ultimate cost for USCIS’s inefficiencies.”); see also In re Hashmi, 24 I. & N. Dec.
785, 793 (BIA 2009) (“[A] critical inquiry will revolve around which party is most
responsible for the delay.”).
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Nor are we convinced that Uribe would not have qualified for a waiver of
inadmissibility had counsel pursued adjustment of status. The BIA correctly notes
that Uribe’s conviction for “attempt forgery” under Nevada Revised Statutes
section 205.110 was categorically a crime involving moral turpitude (CIMT). But,
although a conviction for a CIMT renders a petitioner “inadmissible” and ineligible
for adjustment of status, 8 U.S.C. § 1255(a), “[t]he Attorney General may, in his
discretion” waive inadmissibility “in the case of an immigrant who is the . . .
parent [or] son . . . of a citizen of the United States . . . if it is established to the
satisfaction of the Attorney General that the alien’s denial of admission would
result in extreme hardship to the United States citizen . . . ,” 8 U.S.C. §
1182(h)(1)(B).
Because prior counsel did not apply for adjustment of status or a waiver of
inadmissibility, Uribe had no opportunity to present evidence of the “extreme
hardship” that may have qualified him for an administrative waiver. The record
evidence before us, however, documents that Uribe has three U.S. citizen children,
including a child with a serious seizure disorder and diabetes, and a U.S. citizen
father; has lived in the United States for more than two decades; and is employed
and paying taxes. And, his crime, while admittedly a CIMT, is a non-violent
crime. Given these facts, it is at least plausible that the Attorney General would
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have granted Uribe an inadmissibility waiver.
PETITION GRANTED; REMANDED.
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