Molales v. Apolinar v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA EDITH MORALES APOLINAR, 
Petitioner,
No. 04-73484
v.
 Agency No.
MICHAEL B. MUKASEY, Attorney A75-706-903
General,
Respondent.

MARIA EDITH MORALES APOLINAR, 
Petitioner, No. 04-75248
v.
 Agency No.
A75-706-903
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 16, 2007—Pasadena, California
Filed January 24, 2008
Before: Harry Pregerson, Michael Daly Hawkins, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Pregerson
1207
1210 MORALES APOLINAR v. MUKASEY
COUNSEL
Maria Janossy, Glendale, California, for the petitioner.
Michael B. Mukasey, Attorney General; David M. McCon-
nell, Deputy Director; Kurt B. Larson, Trial Attorney, U.S.
Department of Justice, Washington, D.C., for the respondent.
OPINION
PREGERSON, Circuit Judge:
Maria Edith Morales Apolinar (“Morales”) petitions for
review of two decisions of the Board of Immigration Appeals
(“BIA”): one dismissing her appeal of an Immigration Judge’s
(“IJ”) denial of cancellation of removal and rejecting her
claim that James Robert Valinoti (“Valinoti”)1 provided inef-
fective assistance (No. 04-73484) and another denying her
motion to reconsider its earlier decision (No. 04-75248). We
have jurisdiction under 8 U.S.C. § 1252. We grant relief and
remand for a merits hearing on Morales’s cancellation of
removal application.
BACKGROUND
Morales is a twenty-eight year-old native and citizen of
Mexico. She testified that she first entered the United States
1
Notably, this is not the first time that we have addressed an ineffective
assistance of counsel claim involving Valinoti and his law firm. See, e.g.,
Baltazar-Alcazar v. INS, 386 F.3d 940 (9th Cir. 2004); Escobar-Grijalva
v. INS, 206 F.3d 1331 (9th Cir. 2000); Hernadez Lucena v. Gonzales, 215
F. App’x 627 (9th Cir. 2006).
MORALES APOLINAR v. MUKASEY 1211
in December 1986 without inspection and has not left since.
She is the single mother of two native-born United States citi-
zen children, Luis Angel Luna Morales, age eleven, and Karla
Luna Morales, age nine. Neither child can read or write Span-
ish. Morales testified that her youngest child, Karla, has
asthma and has undergone surgery for a neck tumor. She also
testified that Karla takes medication four times a day and
receives monthly medical visits. Morales and her children live
with extended family members, including Morales’s mother
and grandparents. Morales began working as a babysitter in
1996 and as a self-employed housekeeper in 1999.
In 2000, Morales filed an application for asylum, which
was denied. On July 17, 2000, she was charged with being an
alien present in the United States without admission or parole,
in violation of the Immigration and Nationality Act, Section
212(a)(6)(A)(i). On October 12, 2000, Morales was repre-
sented by then-attorney James Robert Valinoti at a master cal-
endar hearing. She conceded the charge of removability, and
the IJ found Morales removable to Mexico. Morales filed a
cancellation of removal application on February 6, 2001. The
IJ conducted an individual merits hearing on December 19,
2002.
At the conclusion of the hearing, the IJ denied Morales’s
application for cancellation of removal, after finding that
Morales failed to establish two of the four requirements: (1)
continuous physical presence for at least ten years preceding
the application and (2) “exceptional and extremely unusual
hardship” to a qualifying relative. See 8 U.S.C. § 1229b(b)
(1)(A), (D).2
On appeal to the BIA, through newly retained counsel,
Maria Janossy, Morales argued that her former attorney,
2
The IJ concluded that Morales met the remaining requirements, namely
that she was of good moral character and had not been convicted of any
disqualifying criminal offenses. See 8 U.S.C. § 1229b(b)(1)(B)-(C).
1212 MORALES APOLINAR v. MUKASEY
Valinoti, provided ineffective assistance. She alleged Valinoti
failed to proffer available witnesses and documents that
would have established her continuous physical presence and
failed to develop her hardship case. The BIA denied her peti-
tion on the ground that she failed to comply with the proce-
dural requirements of Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988), and then subsequently denied her motion to
reconsider. Morales timely appealed.
STANDARD OF REVIEW
“We review de novo claims of due process violations in
deportation proceedings.” Cano-Merida v. INS, 311 F.3d 960,
964 (9th Cir. 2002) (quoting Perez-Lastor v. INS, 208 F.3d
773, 777 (9th Cir. 2000)). We review the BIA’s denial of a
motion to reconsider for abuse of discretion, although “de
novo review applies to the BIA’s determination of purely
legal questions.” Id. (quoting Mejia v. Ashcroft, 298 F.3d 873,
876 (9th Cir. 2002)).
DISCUSSION
I. PROCEDURAL REQUIREMENTS FOR AN
INEFFECTIVE ASSISTANCE CLAIM
The BIA abused its discretion when it dismissed Morales’s
ineffective assistance claim for failure to comply with the pro-
cedural requirements of Lozada.
[1] Under Lozada, the BIA generally requires a petitioner
claiming ineffective assistance of counsel to: (1) submit an
affidavit demonstrating and explaining her agreement with
prior counsel regarding legal representation; (2) inform prior
counsel of the accusations and allow counsel an opportunity
to respond; and (3) indicate whether a complaint has been
filed with the appropriate disciplinary authorities. Id. at 639.
[2] In practice, we have been flexible in our application of
the Lozada requirements. The Lozada factors are not rigidly
MORALES APOLINAR v. MUKASEY 1213
applied, especially where their purpose is fully served by
other means. See, e.g., Castillo-Perez v. INS, 212 F.3d 518,
525-26 (9th Cir. 2000) (explaining that the Lozada require-
ments “are not sacrosanct”); see also Ray v. Gonzales, 439
F.3d 582, 588 (9th Cir. 2006) (observing that we have “not
hesitated to address ineffective assistance of counsel claims,
even when an alien fails to comply strictly with Lozada”).
Indeed, “we seldom reject ineffective assistance of counsel
claims solely on the basis of Lozada deficiencies.” Fong Yang
Lo v. Ashcroft, 341 F.3d 934, 937 n.4 (9th Cir. 2003).
We conclude that Morales substantially complied with the
Lozada requirements. The attorney-client arrangement
between Morales and Valinoti is evident from Valinoti’s on-
the-record appearances on her behalf.3 Additionally, Morales
submitted a sworn declaration explaining the conduct that
substantiated her ineffective assistance claim. The declaration
stated that: (1) Valinoti relied on Estela Rodriguez, a non-
attorney immigration consultant, or notario, to perform the
legal work; (2) Valinoti failed to submit available documents
that would have supported her showing of continuous physi-
cal presence; (3) Valinoti failed to call witnesses who were
able and willing to testify to her continuous physical pres-
ence; and (4) Valinoti failed to establish Morales’s mother as
a qualifying relative for hardship analysis purposes. Although
Morales did not report Valinoti’s misconduct to a disciplinary
authority or confront Valinoti directly, as required under
Lozada, we conclude that such action would have been futile
under the circumstances.
Just twelve days after Morales’s hearing before the IJ,
Valinoti was suspended from the practice of law in the state
3
Under 8 C.F.R. § 1003.17(a), an attorney must execute, file, and serve
a Notice of Entry of Appearance on Form EOIR-28 before representing a
client in any proceeding before an IJ. An attorney may withdraw from rep-
resentation or effectuate substitutions of attorney only upon motion to the
IJ. 8 C.F.R. § 1003.17(b).
1214 MORALES APOLINAR v. MUKASEY
of California for five years. In a 100-page decision, the Cali-
fornia State Bar Court found that Valoniti had committed
eighteen counts of misconduct in nine cases and five addi-
tional counts of uncharged but proven misconduct. In re
Valinoti, No. 96-O-08095, 2002 WL 31907316 (Cal. Bar Ct.
Dec. 31, 2002).4 Valinoti subsequently resigned from the
State Bar of California.
After the State Bar Court issued its decision, the Executive
Office for Immigration Review petitioned for Valinoti’s
immediate suspension from practice before the BIA and
Immigration Courts. The IJs were aware of Valinoti’s under-
handed practices for quite some time. Valinoti, 2002 WL
31907316, at *24 (explaining that Valinoti was “well-known”
among IJs for repeatedly being late for hearings, or missing
them altogether).5 The Department of Homeland Security
4
During the disciplinary hearings, the State Bar Court determined that
Valinoti handled more than 2,720 immigration cases during a two-year
period in a manner that was “reckless and involved gross carelessness,” id.
at *14, while earning more than $250,000 annually, id. at *9. The court
found that Valinoti failed to competently represent clients, accepted more
cases than he could handle, routinely “placed his interests above those of
his clients” by permitting non-lawyers to perform legal work, and “consis-
tently demonstrated a profound lack of understanding of his duty of fidel-
ity to his clients.” Id. at *14 (quoting hearing judge’s findings of fact). The
court also censured Valinoti for maintaining an excessive caseload with
inadequate support staff, id. at *15-*17, moving his offices repeatedly
without notifying his clients, id. at *17-*20, and failing to keep adequate
records, id. at *20-*24.
5
In November 1996, an exasperated IJ admonished an attorney from
Valinoti’s law office: “Mr. Valinoti knows he’s overbooked. Most attor-
neys have maybe one or two hearings set. He has anywhere from six to
ten set each morning or afternoon, and he’s all over this courthouse. The
result is his clients are not represented in court.” Id. The IJ went on to
characterize the pleading in the case before him as “one of the shoddiest”
that he “had seen in a long time” and noted that “every case [Valinoti] has
is a problem.” Id. at *41. In that case, Valinoti’s client, a sixty-eight year-
old widow, was removed in absentia to Syria after her requests for relief
were deemed abandoned due to Valinoti’s ineffective assistance. Id. at
MORALES APOLINAR v. MUKASEY 1215
likewise petitioned for Valinoti’s suspension from practice
before that agency. Valinoti was required to file a timely
answer to these allegations of misconduct, see 8 C.F.R.
§ 1003.105(c)(1), but he failed to do so. In re Valinoti, No.
D2000-034, at 1 (BIA Oct. 8, 2003), available at http://
www.usdoj.gov/eoir/profcond/FinalOrders/ValinottiJamesR-
FnlOrd.pdf. His failure to respond constituted an admission of
the allegations, see 8 C.F.R. § 1003.105(d)(1), and Valinoti
was consequently suspended from practicing before the BIA,
the Immigration Courts, and the Department of Homeland
Security. See In re Valinoti, No. D2000-34, at 2.
[3] We conclude that, in cases where a petitioner’s attorney
has been suspended after failing to respond to prior charges
of ineffective assistance, it would be futile for the petitioner
to inform counsel of the accusations or file a complaint, and
Morales’s failure to do so therefore does not bar her ineffec-
tive assistance of counsel claim.
This decision comports with the policy goals of Lozada,
which are “to provide a framework within which to assess the
bona fides of the substantial number of ineffective assistance
claims asserted, to discourage baseless allegations and merit-
less claims, and to hold attorneys to appropriate standards of
performance.” Fong Lang Yo, 341 F.3d at 937. Sadly, “the
adjudication of [immigration] cases at the administrative level
has fallen below the minimum standards of legal justice.” See
*39-*42. That same month, another IJ complained that Valinoti’s conduct
was “taxing the system,” id. at *32, before ordering his client removed in
absentia to Mexico because of Valinoti’s failure to abide by court-ordered
deadlines, id. at *46. Again, in July 1997, while denying a request for a
continuance, another IJ recognized that Valinoti had shown “complete
irresponsibility in terms of what has been going on. This is not the first
time that this has happened. This has happened before, within the last
month, with Mr. Valinoti. I do not know what his problem is.” Id. at *45.
Valinoti’s associate agreed with the IJ that Valinoti’s conduct was
“shameful.” Id.
1216 MORALES APOLINAR v. MUKASEY
Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005)
(Posner, J.). All too often, vulnerable immigrants are preyed
upon by unlicensed notarios and unscrupulous appearance
attorneys who extract heavy fees in exchange for false prom-
ises and shoddy, ineffective representation. Despite wide-
spread awareness of these abhorrent practices,6 the lamentable
exploitation of the immigrant population continues, and the
BIA’s insistence upon strict compliance with Lozada in cases
where such compliance would clearly be futile only worsens
the plight of the immigrant.
[4] Since it would have been futile for Morales to confront
Valinoti and file a complaint, the BIA abused its discretion in
dismissing Morales’s claim of ineffective assistance of coun-
sel for failure to strictly comply with Lozada.
II. PREJUDICIAL IMPACT OF VALINOTI’S
DEFICIENT PERFORMANCE
[5] As an alternative ground for dismissing Morales’s inef-
fective assistance of counsel claim, the BIA erroneously con-
cluded that Morales’s “former attorney’s advice does not
appear to have biased her claim.” In the context of an ineffec-
tive assistance of counsel claim, prejudice is established when
“the performance of counsel was so inadequate that it may
have affected the outcome of the proceedings.” Munoz v. Ash-
croft, 339 F.3d 950, 955 (9th Cir. 2003) (citation omitted)
(emphasis added). Morales “need not explain exactly what
evidence [she] would have presented in support of [her] appli-
cation.” Cano-Merida, 311 F.3d at 965 (internal quotation
marks omitted). Nor must Morales demonstrate conclusively
6
See, e.g., Mendoza-Mazariegos v. Mukasey, ___ F.3d ___, 2007 WL
4259510, at *10 n.4 (9th Cir. Dec. 6, 2007) (“The immigration system in
this country is plagued with ‘notarios’ who prey on uneducated immi-
grants.”); H.B. 2659: Notorious Notaries — How Arizona is Curbing
Notario Fraud in the Immigration Community, 32 ARIZ. ST. L.J. 287, 292
(2000); Unlawful Practice Hits Vulnerable Immigrants, CAL. B.J. 1, 7
(Nov. 2001).
MORALES APOLINAR v. MUKASEY 1217
that she would win on her claims absent Valinoti’s deficient
performance. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th
Cir. 2004). She need only show “plausible grounds for relief.”
Id. We conclude that Valinoti’s deficient performance preju-
diced Morales’s ability to meet the requirements for cancella-
tion of removal.
[6] Valinoti’s deficient performance “prevented [Morales]
from reasonably presenting her case” and so prejudiced her
ability to establish continuous physical presence in the United
States from June 1990 to the date of her application. See 8
U.S.C. § 1229b(b)(1)(A); Iturribarria v. INS, 321 F.3d 889,
899 (9th Cir. 2003). Valinoti failed to introduce available doc-
umentary evidence, including school records dating from
1988 to 1995, that would have supported Morales’s showing
of physical presence.7 The IJ determined that Morales failed
to meet the physical presence requirement largely due to her
failure to present school records. “If she was attending school
in this country,” the IJ reasoned, “she could have obtained
documents that would clearly indicate she was here, attending
school.”
Likewise, Valinoti failed to elicit testimony in support of
Morales’s physical presence. This evidence included testi-
mony from Morales’s relatives, some of whom were lawful
residents, that Morales had lived in the United States with her
family since 1988. The IJ discredited Morales’s testimony
because no witness corroborated her arrival date: “[I]t is very,
very difficult for the Court to believe [Morales’s] testimony
that she was here as early as 1986, when not one of the per-
7
The BIA’s refusal to consider these documents, when submitted in a
motion to supplement, was improper. The BIA incorrectly concluded the
English-language documents did not comply with 8 C.F.R. § 1003.33because they were not accompanied by a certification of translation. In
fact, no certification of translation was necessary because the English-
language documents were originals. As Morales explained, the school that
issued the records provided both Spanish and English versions to Morales,
which is why she submitted both sets of originals to the BIA.
1218 MORALES APOLINAR v. MUKASEY
sons that allegedly would have known of her entry into this
country is willing to come to Court and testify on her behalf.”
Had Valinoti called the available relatives, their testimony
would have been a factor considered by the IJ. See Vera-
Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir. 2003) (“[T]he
time element of an alien’s residency . . . may be shown by
credible direct testimony or written declarations.”); see also
Perez-Lastor, 208 F.3d at 782 (drawing inference of prejudice
despite lack of evidence as to the content of omitted testi-
mony).
[7] Valinoti’s deficient performance also prejudiced Mora-
les’s ability to meet the “exceptional and extremely unusual
hardship” requirement for cancellation of removal. See 8
U.S.C. § 1229b(b)(1)(D). Morales had to show that a qualify-
ing (i.e., citizen or legal permanent resident) relative — “her
spouse, parent, or child” — would suffer hardship substan-
tially beyond that which would ordinarily be expected to
result from her removal In re Monreal, 23 I. & N. Dec. 56(BIA 2001). Valinoti, who represented the entire Morales
family throughout the course of Morales’s removal proceed-
ings, failed to establish Morales’s mother as a qualifying rela-
tive for hardship analysis purposes. Cf. Lara-Torres v.
Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004) (concluding that
ineffective assistance of counsel claims brought under the
Fifth Amendment’s fair hearing guarantee are limited to
“legal services . . . rendered while proceedings were ongo-
ing”). Any competent attorney would have recognized the
strategic value of strengthening Morales’s hardship case by
qualifying her mother. However, the BIA dismissed as “spec-
ulation” the possibility that Morales’s mother could have
adjusted her status to that of a lawful permanent resident. In
fact, Morales’s mother has successfully adjusted her status
with the aid of newly retained counsel.
[8] On appeal, Morales need only show “plausible grounds
for relief.” Lin, 377 F.3d at 1027. With her mother established
as a qualifying relative, it is certainly plausible that Morales
MORALES APOLINAR v. MUKASEY 1219
would have met the hardship requirement because Morales’s
mother, who lives with her, is permanently disabled. See 8
C.F.R. § 1240.58(b) (listing the health condition of a parent
as ground for hardship); Maravilla Maravilla v. Ashcroft, 381
F.3d 855, 857-58 (9th Cir. 2004) (per curiam). The facts sur-
rounding Morales’s permanently disabled mother, her young
daughter’s medical problems, the impact of removal on her
United States citizen children, and Morales’s residence in the
United States since her early childhood days might all have
been favorably developed by a competent lawyer who was
thoroughly familiar with the details of her case. Of course,
“our role is not to second guess the hardship decision or even
to speculate how it might ultimately come out with a [compe-
tent] lawyer marshaling the facts in concert with the law.” See
Baltazar-Alcazar v. INS, 386 F.3d 940, 949 (9th Cir. 2004).
Rather, we simply conclude that Morales’s ability to present
her case may have been affected by the deficient performance
of Valinoti and, as a result, we grant Morales another opportu-
nity to present her case before the IJ. In so holding, we dis-
miss as moot Morales’s appeal of the BIA’s denial of her
motion to reconsider.
Accordingly, we GRANT the petition for review in No. 04-
73484 and REMAND. We DISMISS the petition for review
in No. 04-75248.