Lara-Torres v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAGOBERTO LARA-TORRES; ERIKA 
LARA-PEREZ, No. 02-72329
Petitioners, Agency Nos.
v.  A75-306-260
ALBERTO GONZALES*, Attorney A75-306-476
General,
Respondent.

DAGOBERTO LARA-TORRES; ERIKA 
LARA-PEREZ, No. 03-70931
Petitioners, Agency Nos.
v.  A75-306-260
ALBERTO GONZALES, Attorney A75-306-476
General,
Respondent.

DAGOBERTO LARA-TORRES; ERIKA  No. 03-70932
LARA-PEREZ, Agency Nos.
Petitioners, A75-306-260
v.  A75-306-476
ALBERTO GONZALES, Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4433
4434 LARA-TORRES v. GONZALES
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 13, 2004—San Francisco, California
Filed September 8, 2004
Amended April 21, 2005
Before: J. Clifford Wallace, M. Margaret McKeown,
Circuit Judges, and Barry Ted Moskowitz, District Judge.**
Opinion by Judge Wallace;
Concurrency by Judge McKeown
**Honorable Barry Ted Moskowitz, United States District Judge for the
Southern District of California, sitting by designation.
LARA-TORRES v. GONZALES 4437
COUNSEL
Marc Van Der Hout, Van Der Hout, Brigagliano & Nightin-
gale, San Francisco, California, for the petitioners.
Russell J.E. Verby, U.S. Dept. of Justice, Washington, D.C.,
for the respondent.
ORDER
The majority opinion filed September 8, 2004, slip op.
12991, and appearing at 383 F.3d 968 (9th Cir. 2004), is
hereby amended as follows:
1. Page 974, at end of second full paragraph, after citation
to Iturribarria, 321 F.3d at 900-01, insert: “While this
temporal distinction may not always be significant, in this
case, Pineda’s allegedly ineffective assistance did not
undermine the fairness of the removal proceedings in part
because it was given well before the prospect of a hearing
materialized.”
2. Page 975, at end of first paragraph: change “removed
from the actual process itself” to “which does not under-
mine the fairness of the actual process itself”
With these amendments, Judge McKeown has voted to
deny the petition for rehearing en banc, and Judges Wallace
and Moskowitz have so recommended. The full court has
been advised of the petition for rehearing en banc and no
4438 LARA-TORRES v. GONZALES
judge of the court has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for
rehearing en banc is DENIED. No subsequent petitions for
rehearing or rehearing en banc may be filed.
OPINION
WALLACE, Senior Circuit Judge:
Dagoberto Lara-Torres and Erika Lara-Perez (together Peti-
tioners) timely petitioned for review of three Board of Immi-
gration Appeals (Board) decisions which have since been
consolidated before us. We have jurisdiction pursuant to 8
U.S.C. § 1252, and we deny the petitions.
I.
Although the accuracy of the following account might be
disputed, for this proceeding we portray the background facts
as Petitioners do. Lara-Torres entered the United States from
Mexico on June 2, 1988, without being admitted or paroled.
Lara-Perez arrived on September 27 of the following year,
also crossing into the United States without being admitted.
The two, both natives and citizens of Mexico, were married
in the United States and have a daughter with United States
citizenship. They apparently concealed their illegal immigrant
status from United States immigration officials until the fol-
lowing events unfolded.
In January of 1997, Lara-Torres found his way to the law
office of Walter Pineda in search of immigration advice.
When he inquired about his options for securing permanent
legal residence in the United States, Pineda informed him that
an asylum application was one possibility. If the Immigration
and Naturalization Service (INS) were to deny Lara-Torres’s
asylum application, an Immigration Judge (IJ) would consider
LARA-TORRES v. GONZALES 4439
the application at a subsequent hearing to determine if Lara-
Torres must depart the United States. An additional category
of relief would be available to Lara-Torres at that time, the
exact form of which depended on whether he was placed in
immigration proceedings before April 1, 1997, or after. April
1 was significant, Pineda explained, because on that day,
recent congressional alterations to United States immigration
provisions would become law. Accordingly, if the INS com-
menced a “deportation” action prior to April 1 by filing an
“Order to Show Cause,” Lara-Torres’s accrual of seven years
“continuous physical presence” in the United States would
make him eligible for “suspension of deportation.” On the
other hand, if the INS sought to have him “removed” after
April 1, 1997, Lara-Torres could seek “cancellation of remov-
al,” but only upon accumulating ten years physical presence.
According to Lara-Torres, Pineda indicated that it did not
matter whether Lara-Torres received a “Notice to Appear,”
charging him as removable, before he reached the ten-year
threshold since he would continue to accrue time during
immigration proceedings. Relying on Pineda’s advice, Lara-
Torres signed an asylum application and asked Pineda to
complete it. Pineda complied and submitted it to the INS on
March 7, 1997. The application listed Lara-Perez as a deriva-
tive applicant.
Barely three weeks later, the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, 110 Stat. 3009-546, took effect, ushering in the
sweeping substantive and terminological changes foretold by
Pineda. One of the anticipated changes impacted the Petition-
ers differently than Pineda had suggested. Pineda had accu-
rately reported that IIRIRA would eliminate “suspension of
deportation,” IIRIRA § 308(b)(7), 110 Stat. at 3009-615
(repealing 8 U.S.C. § 1254), and institute a replacement form
of relief—“cancellation of removal”—requiring ten years
continuous presence, id. § 304(a)(3), 110 Stat. at 3009-594 to
3009-596 (codified as amended at 8 U.S.C. § 1229b). How-
ever, Pineda wrongly predicted the effect IIRIRA’s “stop-
4440 LARA-TORRES v. GONZALES
time” provision would have on the Petitioners’ application for
cancellation of removal. As alluded to above, Pineda took the
position that the provision would not be applied “retroactive-
ly” to aliens who submit asylum applications prior to April 1,
1997. This view has not withstood judicial scrutiny. See, e.g.,
Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir. 2003).
By its terms, the stop-time provision halts an alien’s accrual
of physical presence as of the date the INS files a Notice to
Appear. 8 U.S.C. § 1229b(d)(1).
Thus, it turned out to be critical that the INS file an Order
to Show Cause against the Petitioners before April 1, 1997,
instead of a Notice to Appear shortly thereafter. Come April
1, having met the seven-year physical presence requirement
for suspension of deportation would no longer matter. Being
shy of the ten years necessary for cancellation of removal
risked making Petitioners ineligible for any relief if the INS
filed a Notice to Appear before they achieved ten years “con-
tinuous physical presence.” Given Petitioners’ status, Pineda’s
strategy was a much greater gamble than they had been led to
believe, and a near sure loser at that. By the Petitioners’ cal-
culations, whose accuracy we assume, Pineda filed the March
7 asylum application far too late to sneak through the remain-
ing window of availability for suspension of deportation; at
least seven to eight weeks typically passed between filing an
asylum application and being charged by the local INS office.
True to its average, the INS filed a Notice to Appear on
May 5, 1997. At their hearing before the IJ on July 7, 1997,
the Petitioners withdrew their application for asylum. The IJ
found them removable and denied their application for cancel-
lation of removal since they had not accrued the required ten
years continuous physical presence.
The Petitioners filed an appeal with the Board, which was
dismissed on May 30, 2001. The Board did not properly
deliver the decision to the Petitioners’ counsel of record, and
thus was forced to reissue the dismissal on December 28,
LARA-TORRES v. GONZALES 4441
2001. We considered this ruling on September 13, 2002, and
granted a petition for review because the Board failed to
attach a copy of its May 30, 2001, order to the December 28,
2001, reissuance. On January 30, 2003, the Board again
attempted to reissue its decision of May 30, 2001, but again
neglected to attach a copy of the actual order. One of the Peti-
tioners’ three current petitions seeks relief from this failure.
The other two petitions address the issue at the heart of this
case: whether Pineda provided constitutionally infirm assis-
tance of counsel. Following the Board’s December 28, 2001,
dismissal, the Petitioners filed a motion to reopen the matter
based on a claim of ineffective assistance of counsel. The
Board denied this motion on June 25, 2002, on two grounds:
(1) the Petitioners failed to comply with the procedural
requirements established in Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988); and (2) Pineda’s legal approach was a tacti-
cal miscalculation, not ineffective assistance. The Board sub-
sequently rejected the Petitioners’ motion to reconsider the
June 25, 2002, refusal to reopen. Although the Board reversed
itself with respect to the alleged Lozada deficiencies, it upheld
its determination that Pineda’s litigation strategy was tactical.
The Petitioners separately petitioned for review of each
denial. We consolidated all three petitions in an order dated
May 6, 2003.
II.
We turn first to the ineffective assistance claims in the Peti-
tioners’ motion to reopen and motion to reconsider. We
review the Board’s denials of both motions for an abuse of
discretion. We must uphold the Board’s ruling “[u]nless [it]
acted arbitrarily, irrationally, or contrary to law.” Lo v. Ash-
croft, 341 F.3d 934, 937 (9th Cir. 2003) (internal quotation
marks and citations omitted). Questions of law are reviewed
de novo, Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999),
as are claims of due process violations, Castillo-Perez v. INS,
212 F.3d 518, 523 (9th Cir. 2000).
4442 LARA-TORRES v. GONZALES
Petitioners’ briefs and oral argument posit that Pineda’s
assistance was ineffective in essentially two ways, both of
which entail allegedly erroneous legal positions. First, the
Petitioners maintain that Pineda should have pursued a differ-
ent strategy to secure for them the right to remain lawfully
and permanently in the United States. Second, the Petitioners
aver that Pineda misinformed them on the relevant law and
available legal options.
[1] In asserting that Pineda’s legal services were defective
on these grounds, the Petitioners misconstrue the effective
assistance of counsel right applicable to immigration matters.
To be certain, evidence of ineffective assistance of counsel
can be a ground for reopening immigration proceedings. See
Iturribarria v. INS, 321 F.3d 889, 894-97 (9th Cir. 2003). But
since deportation and removal proceedings are civil, they are
“not subject to the full panoply of procedural safeguards
accompanying criminal trials,” including the right to counsel
under the Sixth Amendment. Magallanes-Damian v. INS, 783
F.2d 931, 933 (9th Cir. 1986). Instead, the extent to which
aliens are entitled to effective assistance of counsel during
these proceedings is governed by the Fifth Amendment due
process right to a fair hearing. Id. To establish a due process
violation, the Petitioners must make two showings: (1) the
alleged ineffective assistance rendered “the proceeding . . . so
fundamentally unfair that [they were] prevented from reason-
ably presenting [their] case,” Iturribarria, 321 F.3d at 899;
and (2) “substantial prejudice,” which “is essentially a dem-
onstration that the alleged violation affected the outcome of
the proceedings,” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000).
[2] Although the Petitioners contend they were denied the
opportunity to “reasonably present [their] case” during the
removal hearing, their argument in support of that proposition
fails. None of Pineda’s purported deficiencies pertain to the
actual substance of the hearing (e.g., evidence presented or
omitted, arguments raised or overlooked), let alone call the
LARA-TORRES v. GONZALES 4443
hearing’s fairness into question. The basic “unfairness” of
which the Petitioners complain is that they never would have
been subject to removal proceedings had it not been for their
reliance on Pineda’s unfortunate immigration-law advice.
This “unfairness,” however, did not taint the “fairness” of the
hearing.
As an initial consideration, we have already rejected
broader due process attacks of this nature, i.e., that it is unfair
to place in removal proceedings illegal aliens who were ineli-
gible for cancellation of removal and who thought their dili-
gence ensured they could avail themselves of suspension of
deportation. Most on point is Vasquez-Zavala v. Ashcroft, 324
F.3d 1105 (9th Cir. 2003), a case where a husband and wife
submitted asylum applications on March 10, 1997, under the
assumption that pre-IIRIRA law would apply to place them in
deportation proceedings in the event their applications were
denied. Id. at 1106, 1108. Nonetheless, the INS filed a Notice
to Appear charging them as removable. Id. at 1106. We
rebuffed the contention that this offended due process:
We also reject Petitioners’ due process challenge
to the application of IIRIRA. Petitioners do not con-
tend that there were any procedural problems with
their hearings or ability to present evidence, but
rather argue that placing them in removal rather than
deportation proceedings by itself amounts to a due
process violation. . . . [T]here is no colorable due
process claim.
Id. at 1108-09. In Lopez-Urenda v. Ashcroft, 345 F.3d 788
(9th Cir. 2003), we rejected the same argument raised by a
petitioner who applied for asylum immediately before
IIRIRA’s enactment, concluding “that his placement in
removal proceedings is [not] so fundamentally unfair as to
amount to a denial of due process.” Id. at 796; see also
Ramirez-Zavala v. Ashcroft, 336 F.3d 872, 874-75 (9th Cir.
2003) (holding that an alien who tried to file for suspension
4444 LARA-TORRES v. GONZALES
of deportation with the INS before April 1, 1997, was not eli-
gible for that relief because her removal proceedings com-
menced with the filing of a Notice to Appear); Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 600 (9th Cir. 2002) (same).
The principle driving these decisions governs here. Removal
proceedings do not become constitutionally unfair simply
because they are precipitated in part by an attorney’s advice
instead of general INS delay, or because the illegal alien
might believe that he could avoid detection until eligible for
another form of relief.
The Petitioners’ misguided citation to Strickland v. Wash-
ington, 466 U.S. 668 (1984), and the proposition for which it
stands—that “the performance inquiry must be whether coun-
sel’s assistance was reasonable considering all the circum-
stances,” id. at 688—is emblematic of their defective
reasoning. Strickland defined the Sixth Amendment standard
for criminal proceedings, id. at 687, which, as stated above,
does not attach to civil immigration matters. See Magallanes-
Damian, 783 F.2d at 933 (“Petitioners must show not merely
ineffective assistance of counsel, but assistance which is so
ineffective as to have impinged upon the fundamental fairness
of the hearing . . . .”). The Petitioners are thus wrong to assert
that we must assess Pineda’s performance strictly in terms of
Strickland’s “reasonableness” standard. The proper focus of
our inquiry is whether “the proceeding is so fundamentally
unfair that the alien is prevented from reasonably presenting
her case.” Iturribarria, 321 F.3d at 899.
[3] Indeed, the Petitioners cite no authority that construes
the Fifth Amendment’s fair hearing guarantee to inquire only
into the reasonableness of the lawyer’s actions, and our rele-
vant precedent yields no support for this theory. To be certain,
we have commented on the significant role a lawyer plays in
helping navigate illegal aliens through an intricate set of pro-
cedures. See, e.g., Monjaraz-Munoz v. INS, 327 F.3d 892, 897
(9th Cir. 2003) (“The role of an attorney in the deportation
process is especially important. For the alien unfamiliar with
LARA-TORRES v. GONZALES 4445
the laws of our country, an attorney serves a special role in
helping the alien through a complex and completely foreign
process.”); Iturribarria, 321 F.3d at 901 (“One reason that
aliens . . . retain legal assistance in the first place is because
they assume that an attorney will know how to comply with
the procedural details that make immigration proceedings so
complicated.”). When we have characterized counsel’s assis-
tance as ineffective, however, the legal services were rendered
while proceedings were ongoing; that is, after a charging doc-
ument was filed. See, e.g., Rodriguez-Lariz v. INS, 282 F.3d
1218, 1226 (9th Cir. 2002) (recognizing counsel was ineffec-
tive when the attorney, during the pendency of deportation
proceedings, inexplicably failed to fulfill his promise to file
a timely application for relief); Castillo-Perez, 212 F.3d at
526 (same); Iturribarria, 321 F.3d at 900-01(same). While
this temporal distinction may not always be significant, in this
case, Pineda’s allegedly ineffective assistance did not under-
mine the fairness of the removal proceedings in part because
it was given well before the prospect of a hearing material-
ized.
The two cases the Petitioners offered during oral argument
as examples of due process infringements observed outside
the context of a specific proceeding are inapposite. The effec-
tive assistance of counsel was simply not at issue. See
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 491
(1991) (deciding a jurisdictional issue in a case where there
was no “dispute that the INS routinely and persistently vio-
lated the Constitution and statutes in processing [special agri-
cultural workers] applications” (emphasis added)); Walters v.
Reno, 145 F.3d 1032, 1036 (9th Cir. 1998) (holding that “the
nationwide procedures by which the INS obtained waivers in
document fraud cases violated the aliens’ rights to due pro-
cess of law”). Although we do not controvert that due process
violations can come in a variety of shapes and sizes, we are
unpersuaded that the Petitioners have suffered one here. We
reject the Petitioners’ attempt to cast such an expansive and
amorphous Fifth Amendment due process right that encom-
4446 LARA-TORRES v. GONZALES
passes legal assistance which does not undermine the fairness
of the actual process itself.
The conclusion we reach here accords with Huicochea-
Gomez v. INS, 237 F.3d 696 (6th Cir. 2001), a nearly identical
case where the petitioners “contend[ed] that [their attorney]’s
conduct amounted to ineffective assistance of counsel because
his ineptitude brought [them] to the attention of the INS for
removal, when they had been living respectably, even if ille-
gally, in the United States for a period just short of the time
required for eligibility to request cancellation of removal.” Id.
at 698. The attorney’s blunder was asking the INS in Septem-
ber 1997 to commence immigration proceedings so that peti-
tioners could apply for suspension of deportation, unaware
that IIRIRA repealed that form of relief and replaced it with
another for which the petitioners were not yet eligible. Id. at
697-98. Nonetheless, the Sixth Circuit held that the petitioners
could not establish that they were prejudiced by the miscue:
It is too speculative for the [petitioners] to claim that
but for [their attorney]’s legal advice, they would not
be facing deportation or would have been granted the
discretionary relief they are seeking. Because the
[petitioners] have conceded their removability, as the
facts plainly indicate, they cannot establish that
[their attorney]’s ineffective assistance, which led to
the [Board]’s final order of removal, has denied
them their Fifth Amendment right to due process of
law.
Id. at 700.
[4] The fallacy in the Petitioners’ argument is further
exposed by the relief they propose for the alleged due process
violation. Broadly speaking, due process violations are reme-
died by providing the aggrieved party the process he or she
was deprived (or an equivalent). Hence immigration proceed-
ings are “reopened” to give a petitioner the opportunity to
LARA-TORRES v. GONZALES 4447
press the case fully, an opportunity the illegal alien lacked the
first go-around due to prior counsel’s legal errors. Nothing
would change in this case, however, if the Petitioners were
given a do-over; putting them back in removal proceedings
could not result in anything other than their removal since
they never accrued the ten years continuous physical presence
that would make them eligible for cancellation of removal.
The remedy they endeavor to fashion—to be placed back in
removal proceedings and treated as if IIRIRA’s stop-time rule
did not apply to them—would require the untenable construc-
tion of an entirely hypothetical world.
In sum, the Petitioners were in the United States illegally
in 1997, and the INS was well within its authority in filing a
Notice to Appear to commence removal proceedings. Except
as discussed in Part III below, there is no indication the INS
or the Board failed to afford them all the proper procedural
protections in holding them removable on the basis of that
charging document. More importantly, there is nothing indi-
cating that Pineda’s legal services undermined the fundamen-
tal fairness of those proceedings. This is all the process due
to the Petitioners.
The Petitioners suggest that the Board’s specific inquiry—
whether Pineda made a series of legitimate tactical decisions
—narrows our review to that particular issue. We are keenly
aware of the limitations placed on our authority to scrutinize
Board determinations. See, e.g., INS v. Ventura, 537 U.S. 12
(2002) (per curiam) (reversing because, instead of remanding
to the Board, our court ruled on an alternative ground the
Board had not reached). However, in examining the scope of
the Fifth Amendment effective assistance of counsel right
applicable to immigration proceedings, we are not “disregard-
[ing] the [Board]’s legally mandated role” to consider certain
matters in the first instance, nor are we depriving it of the
opportunity to pass on an issue suited to its expertise or that
requires it to develop the record. See id. at 17. Rather, we are
addressing an antecedent question of law whose resolution
4448 LARA-TORRES v. GONZALES
determines whether the Petitioners have any basis for relief in
the first place. In that sense, we are ruling on the ground on
which the Board relies: Pineda’s “advocacy did not constitute
ineffective assistance of counsel,” because his advice could
not constitute ineffective assistance of counsel under the cir-
cumstances.
As Petitioners’ due process rights were not violated, the
Board did not abuse its discretion in denying their motion to
reopen and motion to reconsider.
III.
[5] Lastly, the Petitioners take issue with the Board’s
improper service of its May 30, 2001, order affirming the IJ
ruling that they are removable. It is undisputed that the appli-
cable immigration regulations obligated the Board to supply
a copy of the decision to the alien petitioner, 8 C.F.R. § 3.1(f)
(2001) (now codified at 8 C.F.R. § 1003.1(f)), and that the
Board failed to comply. However, the Petitioners have not
been injured by the Board’s oversight, nor do they specify any
relief to which they are entitled. See Florez-de Solis v. INS,
796 F.2d 330, 336 (9th Cir. 1986) (“Violation of a regulation
renders the deportation unlawful only if the violation preju-
diced the interests of the alien which are protected by the reg-
ulation.” (internal quotation marks, brackets, and citations
omitted)). We have stated that 8 C.F.R. § 3.1(f) (2001), the
regulation ignored by the Board, “protect[s the alien’s] right
to petition this court for review.” Florez-de Solis, 796 F.2d at
336. The Petitioners were “not deprived of these rights”
because their “petition to this court for review was timely and
[they have] obtained that review.” Id.; cf. Martinez-Serrano v.
INS, 94 F.3d 1256 (9th Cir. 1996). We can provide no further
redress.
Petition DENIED.
LARA-TORRES v. GONZALES 4449
McKEOWN, Circuit Judge, concurring in the judgment:
I agree with the result reached by the majority, but cannot
sign onto its reasoning without qualification. I would simply
deny Lara-Torres’s petition on the ground that the BIA was
correct to conclude that the original attorney committed a tac-
tical miscalculation rather than ineffective assistance of coun-
sel. I agree that the error here should be judged against the
Due Process Clause of the Fifth Amendment. I write sepa-
rately because I am unable to join the majority in its effort to
forge new constitutional boundaries where resolution could be
reached on much narrower grounds.
At the heart of my concern is the rigid temporal barrier the
majority erects around what it calls “the actual process itself.”
Under the thesis crafted by the majority, due process claims
akin to Lara-Torres’s are subject to a new threshold question:
Were “the legal services [ ] rendered . . . after a charging doc-
ument was filed”? Maj. op. at 4445 (emphasis in original). By
fixating on the word “process” in “due process” and reducing
it to its most technical meaning, see id. at 4445, the majority
elevates to paramount importance the initiation of a formal
legal proceeding. So much of lawyering, and, for that matter,
the legal “process,” occurs before or in connection with initia-
tion of formal proceedings such that the majority’s new rule
has the capacity to narrow significantly the protections
afforded by due process.
The rigidity imposed by the majority’s rule runs contrary to
the spirit of due process and fundamental fairness. As the
Supreme Court has explained in the civil context of child cus-
tody hearings, due process “is not a technical conception with
a fixed content.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,
24 (1981). “Rather, the phrase expresses the requirement of
‘fundamental fairness,’ a requirement whose meaning can be
as opaque as its importance is lofty.” Id. The majority here
perhaps attempts to relieve due process of some of its murki-
ness. But whatever clarity might be gained comes at too great
4450 LARA-TORRES v. GONZALES
a cost: the temporal incision created by the majority opinion
cuts away the actual substance of fundamental fairness.1
Resolution of this case could be accomplished by adher-
ence to the principle of judicial restraint. Substantial record
evidence supports the BIA’s conclusion that the strategical
errors committed by Lara-Torres’s attorney did not rise to the
level of constitutional infirmity. In my view, it is more pru-
dent to deny the petition for this reason than to fashion a new
rule of constitutional law.
Accordingly, with respect to Part II, I respectfully concur
only in the result.
1
In the criminal context, for example, we frequently entertain claims
that due process was violated when statutory language is so ambiguous
that the “defendant . . . had no fair warning that his conduct violated the
law.” Webster v. Woodford, 361 F.3d 522, 530 (9th Cir. 2004). The foun-
dation of such an argument lies entirely outside of the temporal scope of
“the proceedings,” yet we accept without hesitation that the right claimed
is one contemplated by the Fifth (or Fourteenth) Amendment.