Raul Quijada Coronado v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 2 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL QUIJADA CORONADO, No. 15-71445
Petitioner, Agency No. A012-632-641
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 March 7, 2018
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Following this court’s partial granting of his previous petition for review,
Petitioner Raul Quijada Coronado petitions for review of an order of the Board of
Immigration Appeals (“BIA”) dismissing his remanded appeal. As the parties are
familiar with the facts, we do not recount them here. We have jurisdiction under 8
U.S.C. § 1252, and we grant the petition and remand with instructions.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Because no intervening higher authority is clearly irreconcilable with this
court’s holding in Coronado v. Holder, 759 F.3d 977, 982-85 (9th Cir. 2014), that
California Health & Safety Code § 11377(a) is a divisible statute subject to the
modified categorical approach, this panel may not reconsider that decision’s
conclusion that the BIA did not err in finding Petitioner inadmissible, see id. at
985-86; see also Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc)
2. Contrary to Respondent’s argument, this court has “jurisdiction to review
constitutional claims” raised in a petition for review, including due-process claims,
“even when those claims address a discretionary decision” such as the denial of
cancellation of removal. Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir.
2003); see also 8 U.S.C. § 1252(a)(2)(D). Because Petitioner’s claims are
constitutional, this court has jurisdiction over his petition.
3. Contrary to Respondent’s argument, the Fifth Amendment’s Due Process
Clause applies to Petitioner’s application for cancellation of removal, Salgado-
Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005), including the rights to “a
full and fair hearing of [one’s] claims and a reasonable opportunity to present
evidence on [one’s] behalf,” id. (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000)); the right to a “neutral judge,” Reyes-Melendez v. INS, 342 F.3d 1001,
1006 (9th Cir. 2003); and the right to competent representation by one’s retained
counsel, e.g., Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011).
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4. The government concedes that Petitioner’s attorney’s performance both
before and during the removal hearing was deficient. Especially in light of the
immigration judge’s (“IJ”) comment that “I do think it’s a close case,” we are
persuaded that the attorney’s deficient performance prejudiced Petitioner because it
“may have affected the outcome of the proceedings.” Correa-Rivera v. Holder,
706 F.3d 1128, 1133 (9th Cir. 2013) (quoting Ortiz v. INS, 179 F.3d 1148, 1153
(9th Cir. 1999)).
5. We therefore grant the petition and remand to the BIA with instructions
to order a new hearing on Petitioner’s application for cancellation of removal. We
urge the BIA to assign the new hearing to a different IJ.1 See Smolniakova v.
Gonzales, 422 F.3d 1037, 1054 (9th Cir. 2005); Perez-Lastor v. INS, 208 F.3d 773,
783 (9th Cir. 2000).
PETITION GRANTED; REMANDED with instructions.
1
Because we grant the petition on other grounds, we need not reach the issue of
the IJ’s bias. See, e.g., Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1114 n.2
(9th Cir. 2017).
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