Luis Pleitez-Lopez v. William Barr , 935 F.3d 716 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS URIEL PLEITEZ-LOPEZ, aka Luis No. 16-73656
Raul Pleitez-Rios,
Petitioner, Agency No.
A205-319-371
v.
WILLIAM P. BARR, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 12, 2019
Pasadena, California
Filed August 23, 2019
Before: Mary M. Schroeder and Susan P. Graber, Circuit
Judges, and Michael H. Watson,* District Judge.
Opinion by Judge Graber
*
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
2 PLEITEZ-LOPEZ V. BARR
SUMMARY**
Immigration
Granting Luis Pleitez-Lopez’s petition for review of a
decision of the Board of Immigration Appeals affirming an
immigration judge’s denial of a continuance for Petitioner to
update his fingerprints with the Department of Homeland
Security (DHS), the panel held that Petitioner’s reliance on
his lawyer’s erroneous advice that he was not required to
update his fingerprints was reasonable and constituted “good
cause” to grant a continuance, and remanded.
Petitioner provided fingerprints to DHS before his first
merits hearing, but was granted a continuance to file for
relief. At a later hearing, the IJ reset Petitioner’s case for a
later date and instructed Petitioner that he must have his
fingerprints retaken 60 days before that hearing or the IJ
would find that he had abandoned his applications for relief.
However, when his hearing date arrived, Petitioner had not
provided the required fingerprints to DHS because his
attorney’s office had erroneously advised him that he was not
required to do so. The IJ denied the continuance, and the BIA
affirmed, concluding that Petitioner lacked good cause for
failing to update his fingerprints because the IJ properly
advised him of his obligation to update his fingerprints and
the consequence for failing to do so.
The panel held that the BIA’s decision to deny a
continuance was an abuse of discretion in two ways. First,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PLEITEZ-LOPEZ V. BARR 3
the BIA failed to analyze all the factors set out by Cui v.
Mukasey, 538 F.3d 1289 (9th Cir. 2008), which instructs
the court to consider: (1) the importance of the evidence,
(2) the unreasonableness of the immigrant’s conduct,
(3) the inconvenience to the court, and (4) the number of
continuances previously granted. Second, the panel held that
the BIA analyzed the unreasonableness of Petitioner’s
conduct in an arbitrary and irrational manner. Contrary to the
BIA, the panel concluded that Petitioner acted reasonably in
relying on his lawyer’s advice, explaining that Petitioner’s
reliance was especially reasonable because the lawyer’s bad
advice post-dated the IJ’s instructions.
COUNSEL
Shawn J. Beam (argued), Los Angeles, California, for
Petitioner.
Jane T. Schaffner (argued), Trial Attorney; Douglas E.
Ginsburg, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4 PLEITEZ-LOPEZ V. BARR
OPINION
GRABER, Circuit Judge:
Petitioner Luis Pleitez-Lopez seeks review of the Board
of Immigration Appeals’ decision affirming the immigration
judge’s (“IJ”) denial of a continuance for Petitioner to update
his fingerprints with the Department of Homeland Security
(“DHS”). Petitioner did not update his fingerprints because
his lawyer advised him, incorrectly, that he was not required
to do so. He contends that his reliance on his lawyer’s advice
was reasonable and constituted “good cause” to grant a
continuance under 8 C.F.R. § 1003.29. We agree and grant
the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, a native and citizen of Guatemala, entered the
United States in 2002 without being admitted or paroled. In
August 2012, the government placed Petitioner in removal
proceedings. Petitioner conceded removability and sought
various forms of relief.
Petitioner originally provided the required fingerprints to
DHS in December 2013, before his first merits hearing. At
that hearing, Petitioner’s lawyer sought a continuance to file
for cancellation of removal; he had learned only recently that
Petitioner might meet the residency requirement for that form
of relief. The IJ granted the continuance.
At a later hearing, the IJ accepted Petitioner’s application
for cancellation of removal and reset the case for a merits
hearing in September 2014, when Petitioner’s fingerprints
PLEITEZ-LOPEZ V. BARR 5
still would have been valid.1 But, at the September hearing,
the IJ reset the merits hearing to May 2015 because he had
“to do another case.” After resetting the hearing date, the IJ
(through an interpreter) instructed Petitioner that he must
have his fingerprints retaken 60 days before the May hearing
or the IJ would find that Petitioner had abandoned his
applications for relief. The government’s lawyer gave
Petitioner a written set of fingerprint instructions, and
Petitioner confirmed to the IJ that he understood the
fingerprint requirement.
When the May 2015 hearing arrived, Petitioner had not
provided updated fingerprints to DHS. His lawyer’s office,
operating under the erroneous belief that DHS fingerprints
remained valid for 18 months, told Petitioner that he need not
submit updated fingerprints to DHS before the May hearing.
Petitioner had, however, recently provided updated
fingerprints to the California Department of Justice. Thus,
Petitioner mistakenly believed that he had complied with the
fingerprint requirement, telling the IJ: “I have to repeat this
again, that I talked to my attorney and he said to me, ‘These
are the ones you need to take.’”
In light of the erroneous legal advice, Petitioner’s lawyer
requested a “brief continuance” for Petitioner to provide
updated fingerprints, but the IJ denied the continuance. The
IJ repeatedly expressed disbelief that Petitioner had relied on
his lawyer’s advice over the IJ’s contrary instructions at the
earlier hearing. “A misunderstanding! I told him, very
clearly gave him—have [sic] the trial attorney give him
1
DHS fingerprints expire after 15 months, Cui v. Mukasey, 538 F.3d
1289, 1292 (9th Cir. 2008), so Petitioner’s December 2013 fingerprints
remained valid through at least part of March 2015.
6 PLEITEZ-LOPEZ V. BARR
written instructions and told him to follow those
instructions.” “Who does he believe, the judge or the lawyer?
. . . You shouldn’t have to even think about this.”
The IJ held that Petitioner lacked good cause for failing
to update his fingerprints, because Petitioner was “not
reasonable in disregarding what the court instructed him to do
even if his counsel gave him other instructions.” The IJ also
found that Petitioner’s failure to obtain updated fingerprints
burdened the government because, if DHS could not perform
the corresponding background investigation, the government
could not prepare adequately for the merits hearing. (But the
government did not object when Petitioner requested a
continuance.) The IJ deemed Petitioner’s applications
abandoned and granted him voluntary departure to
Guatemala.
The BIA affirmed the IJ’s decision that Petitioner lacked
good cause for failing to update his fingerprints. According
to the BIA, Petitioner lacked good cause because the IJ
“properly advised [Petitioner] of his obligations to comply
with the biometric processing requirements and the
consequences for failing to do so.” Petitioner timely sought
our review.
STANDARD OF REVIEW
“Where, as here, the BIA reviewed the IJ’s factual
findings for clear error, and reviewed de novo all other
issues,” we limit our review to the BIA’s decision, except to
the extent that it expressly adopted the IJ’s opinion. Singh v.
Whitaker, 914 F.3d 654, 658 (9th Cir. 2019). We review for
abuse of discretion an agency’s denial of a continuance.
Malilia v. Holder, 632 F.3d 598, 602 (9th Cir. 2011).
PLEITEZ-LOPEZ V. BARR 7
DISCUSSION
Under Cui v. Mukasey, 538 F.3d 1289, 1295–96 (9th Cir.
2008), “it is clearly an abuse of discretion for an IJ to deny a
request from an otherwise diligent applicant for a short
continuance to submit fingerprints.” That holding alone
might resolve this case (despite Cui’s statement that “there
are no bright-line rules for deciding when an IJ’s denial of a
continuance warrants reversal”). Id. at 1295. But Cui
instructs us to consider four factors to assess whether the
denial of a continuance constituted an abuse of discretion:
“(1) the importance of the evidence, (2) the unreasonableness
of the immigrant’s conduct, (3) the inconvenience to the
court, and (4) the number of continuances previously
granted.” Id. at 1292.
The BIA considered only the unreasonableness of
Petitioner’s conduct and did not address the other factors or
adopt the IJ’s finding of a burden to the government. We
hold that the BIA’s decision to deny a continuance was an
abuse of discretion in two ways. The BIA failed to analyze
all the Cui factors and, in addition, analyzed the
unreasonableness of Petitioner’s conduct in an arbitrary and
irrational manner. See Hernandez-Velasquez v. Holder,
611 F.3d 1073, 1077 (9th Cir. 2010) (“An error of law is an
abuse of discretion.”); Avagyan v. Holder, 646 F.3d 672, 678
(9th Cir. 2011) (“The BIA abuses its discretion when its
decision is arbitrary, irrational, or contrary to law.” (internal
quotation marks omitted)). We turn next to the Cui factors.
First, the fingerprint evidence was vital to Petitioner’s
applications because he could not obtain relief without an
updated fingerprint check. See Cui, 538 F.3d at 1292–93
(“Thus, when the IJ denied her request for a continuance to
8 PLEITEZ-LOPEZ V. BARR
resubmit her fingerprints, he effectively pretermitted any
hope Cui had of obtaining relief. Her case was over.”).
Second, Petitioner acted reasonably in relying on his
lawyer’s advice that he did not need to update his fingerprints
with DHS.
For the alien unfamiliar with the laws of our
country, an attorney serves a special role in
helping the alien through a complex and
completely foreign process. It is therefore
reasonable for an alien to trust and rely upon
an attorney’s advice to such an extent that if
an alien fails to show up to a hearing because
of an attorney, we can say that this is an
exceptional circumstance “beyond the control
of the alien.” 8 U.S.C. § 1229a(e)(1).
Monjaraz-Munoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003).
Likewise, if an alien fails to provide updated fingerprints to
DHS “because of an attorney,” id., the alien’s reliance on the
lawyer’s advice may constitute the requisite “good cause” for
a continuance under 8 C.F.R. § 1003.29. Here, because the
lawyer’s bad advice post-dated the IJ’s instructions,
Petitioner’s reliance on the later advice was especially
reasonable. For example, the fingerprint requirements might
have changed since his last hearing, including by lengthening
the period during which fingerprints were valid or by
allowing the California Department of Justice to send
fingerprints to DHS.2 If the lawyer’s bad advice had
2
See Mendoza-Ortiz v. Holder, 464 F. App’x 615, 617 (9th Cir. 2011)
(unpublished) (holding that the IJ abused his discretion by denying a
continuance to complete a “fingerprinting and background check” where
PLEITEZ-LOPEZ V. BARR 9
preceded the IJ’s instructions, we might reach a different
result.
Of course, the IJ warned Petitioner that he must submit
updated fingerprints and that his applications would be
deemed abandoned if he did not do so. The government cited
several unpublished cases for the proposition that Petitioner
behaved unreasonably because the IJ warned him of his
obligations and the consequences of failing to comply. But
none of those unprecedential decisions involved petitioners
who failed to submit updated fingerprints because their
lawyers told them not to do so after the IJ had given the
fingerprint instructions. In other words, none of those
petitioners demonstrated good cause for a continuance. By
contrast, here Petitioner did show good cause; he relied on his
lawyer’s advice because of the special relationship between
an alien who is navigating the complex immigration process
and the lawyer who is helping him. Monjaraz-Munoz,
327 F.3d at 897. The BIA’s emphasis on the IJ’s instructions
to Petitioner failed to account for that special relationship or
for the fact that the lawyer’s advice not to provide updated
fingerprints post-dated the IJ’s instructions to Petitioner.
Third, the inconvenience to the court of granting the
continuance would have been minimal. Cui explained that
granting a continuance in these circumstances “would not
have resulted in any cognizable inconvenience to the court or
the petitioner’s lawyer “told the IJ that his office had mistakenly advised
[the petitioner] that he had completed all required background checks”).
In concurrence, Judge Silverman wrote: “The lawyer’s conduct here was
inexcusable, but the client’s reliance on his lawyer was not.” Id. at 618
(Silverman, J., concurring). We are not bound by Mendoza-Ortiz, but we
find its reasoning persuasive.
10 PLEITEZ-LOPEZ V. BARR
the government.” 538 F.3d at 1295. Because the IJ already
had reserved time for the May 2015 merits hearing, the IJ
could have allowed Petitioner to present testimony without
suffering any inconvenience.3 Id. Then the IJ could have
either “issued a tentative grant of relief conditioned on the
submission and analysis of [Petitioner’s] fingerprints” or
“denied relief immediately.” Id. The former option would
have required merely “a brief hearing to hear the security
check results” at a later date. Id. In the alternative, the
record discloses no reason why a continuance without taking
evidence would have inconvenienced the court.
Fourth, and finally, before his request for the fingerprint
continuance, Petitioner had sought just one continuance (to
file his application for cancellation of removal). In Cui, we
found that this factor weighed in the petitioner’s favor even
where she had “requested few continuances” before the
continuance to submit fingerprints. 538 F.3d at 1295. Thus,
this factor weighs in Petitioner’s favor because he also
requested few continuances.
Petition GRANTED and REMANDED for further
proceedings consistent with this opinion.
3
The government argued that this case differs from Cui because
Petitioner initially requested a continuance during the May 2015 hearing
for a different reason—his witness was unavailable because she had to
have her fingerprints taken that day. That is true, but the BIA’s decision
relied solely on the absence of updated fingerprints. And, even without
his other witness, Petitioner still could have presented part of his case
through his own testimony and the documentary evidence that he had
previously submitted.