FILED

NOT FOR PUBLICATION JUN 16 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ARTURO SOLIS-PADILLA, No. 04-72474

Petitioner, Agency No. A095-002-036

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted May 6, 2010 Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, United States District Judge.**

Petitioner Arturo Solis-Padilla (“Solis-Padilla”), a native and citizen of

Mexico, appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion

to reopen. Solis-Padilla sought relief based on a claim of ineffective assistance of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. counsel (“IAC”). The BIA concluded that Solis-Padilla was precluded from

applying for cancellation of removal and denied his motion to reopen.

We have jurisdiction under 8 U.S.C. § 1252, and we review the BIA’s denial

of a motion to reopen for abuse of discretion. Lainez-Ortiz v. INS, 96 F.3d 393,

395 (9th Cir. 1996). Because we conclude that Solis-Padilla’s counsel was

ineffective and that Solis-Padilla has made a substantial showing that he could

establish plausible grounds for relief, we grant the petition and remand.

When making an IAC claim, an alien must generally comply with the

procedural requirements established by the BIA in Matter of Lozada, 19 I. & N.

Dec. 637 (BIA 1988). See Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003).

Solis-Padilla substantially complied with the Lozada factors and, therefore, we

consider the merits of his IAC claim.

An alien raising an IAC claim must establish both that (1) due to counsel’s

ineffective performance “the proceeding [was] so fundamentally unfair that the

alien [was] prevented from reasonably presenting [his] case,” and that (2) counsel's

ineffective performance prejudiced him. Ituribarria, 321 F.3d at 899.

1. At his removal hearing, Solis-Padilla was represented by an attorney from

the Law Office of James Valinoti. Solis-Padilla met his attorney for the first time

on the day of the hearing. At the hearing, Solis-Padilla’s attorney, when asked by

2 the immigration judge (“IJ”) whether Solis-Padilla wished to apply for cancellation

of removal, responded “I do not have anything to file.” When the IJ asked if Solis-

Padilla wanted voluntary departure, the attorney answered “Yes.” 1 The IJ granted

voluntary departure.

Subsequently, Solis-Padilla filed a motion to reopen with the BIA. The

motion raised an IAC claim and included an application for cancellation of

removal. At the heart of Solis-Padilla’s IAC claim is his argument that his counsel

failed to advise him at the removal hearing that he could have applied for

cancellation of removal and that under INS v. St. Cyr, 533 U.S. 289, 325–26

(2001), he also could have sought suspension of deportation under former 8 U.S.C.

§ 1254(a)(2) (1995) (repealed 1996).

To establish eligibility for discretionary relief in the form of cancellation of

removal, an alien is statutorily required to meet the five 8 U.S.C. § 1229b(b)

requirements. See Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.

2006). Solis-Padilla’s alleged conviction for the sale of cocaine would almost

certainly constitute illicit trafficking in a controlled substance and would therefore

qualify as an “aggravated felony,” rendering him statutorily ineligible for

1 On more than one occasion we have found that the Valinoti firm has provided an alien incompetent representation. See Morales Apolinar v. Mukasey, 514 F.3d 893, 894 n.1 (9th Cir. 2008).

3 cancellation of removal.2 See Immigration Act of 1990, Pub. L. No. 101–649, §

501, 104 Stat. 4978, 5084 (“IMMACT”); 8 U.S.C. § 1229b(b)(1)(C).

A reasonable reading of St. Cyr, however, suggests that Solis-Padilla was

not limited to seeking relief in the form of cancellation of removal. Rather, Solis-

Padilla’s desire for discretionary relief should have been considered under the pre-

Illegal Immigration Reform and Immigration Responsibility Act of 1996

(“IIRIRA”) requirements for suspension of deportation.3 Counsel’s failure to

advance this argument at the time of Solis-Padilla’s removal hearing constituted

ineffective assistance of counsel.

At the time of Solis-Padilla’s 1986 conviction, cancellation of removal as a

form of relief did not exist. Instead, an alien subject to removal who sought

discretionary relief could apply for the more lenient suspension of deportation. See

Lopez-Castellanos, 437 F.3d at 852. To be eligible for suspension of deportation

2 The parties dispute whether Solis-Padilla has a conviction for the sale of cocaine. While we recognize that the issue is unresolved, because the burden is on Solis-Padilla to establish plausible grounds for relief in a motion to reopen, and he has offered no evidence to rebut the two references to such a conviction in the record, we assume for purposes of this disposition that he has indeed suffered such a conviction. See Morales Apolinar v. Mukasey, 514 F.3d 893, 899 (9th Cir. 2008). 3 On April 1, 1997, IIRIRA repealed suspension of deportation and replaced it with cancellation of removal, a form of relief not available to aliens convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3).

4 an applicant was required to establish (1) seven years of continuous physical

presence within the United States; (2) good moral character during that period; and

(3) that deportation would result in extreme hardship to the alien or a qualifying

relative. Id. (citing 8 U.S.C. § 1254(a)(1) (1995) (repealed 1996)).

At the time of Solis-Padilla’s conviction, Solis-Padilla had been in the

country for approximately seven years. Furthermore, a plea of guilty to a charge of

the sale of cocaine would not have categorically removed Solis-Padilla from

eligibility for the former discretionary relief of suspension of deportation.

Therefore, at the time of his conviction, Solis-Padilla could have retained the

reasonable expectation that an avenue of discretionary relief—suspension of

deportation—would remain available to him despite a felony drug related

conviction. See St. Cyr, 533 U.S. at 326; see also Hernandez de Anderson v.

Gonzales, 497 F.3d 927, 942 (9th Cir. 2007).4 Here, to apply the standards of

cancellation of removal, 8 U.S.C. § 1229b(b)(1)(C), would have an impermissibly

4 Following his conviction and incarceration, Solis-Padilla would have to meet the suspension of deportation requirements under 8 U.S.C. § 1254(a)(2) (1995) (repealed 1996) and establish ten years of continuous physical presence and good moral character after release from prison. See Hernandez de Anderson, 497 F.3d at 936. Neither the ten year requirement nor Solis-Padilla’s status as a deportable alien, however, affect his plausible reliance on settled expectations at the time of his conviction. See Lopez-Castellanos, 437 F.3d at 854.

5 retroactive effect in violation of St. Cyr. See Lopez-Castellanos, 437 F.3d at

852–53.

This claim was fully available to Solis-Padilla at the time of his hearing

before the IJ: Solis-Padilla’s hearing was in July 2002 and St. Cyr was decided in

2001. That this is a reasonable application of St. Cyr and not a frivolous argument

is apparent from this court’s cases of Lopez-Castellanos, 437 F.3d at 852–53, and

Hernandez de Anderson, 497 F.3d at 942–44. Therefore, in light of the Supreme

Court’s holding in St. Cyr, counsel’s failure to inform Solis-Padilla that he

remained eligible for consideration for the discretionary relief of suspension of

deportation prevented Solis-Padilla from reasonably presenting his case and

constituted IAC in violation of his Fifth Amendment rights. See Iturribarria, 321

F.3d at 899.

2. We cannot grant Solis-Padilla’s petition and order the BIA to grant his

motion to reopen, however, unless he can demonstrate that his counsel’s deficient

representation prejudiced his case. Id. Prejudice results when “the performance of

counsel was so inadequate that it may have affected the outcome of the

proceedings.” Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999). To demonstrate

that he was prejudiced by his counsel's alleged ineffectiveness, Solis-Padilla “only

6 needs to show that he has plausible grounds for relief.” United States v.

Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996).

To show prejudice, Solis-Padilla must, therefore, demonstrate that—had he

been apprised of the legal argument available to him under St. Cyr—he could have

met his burden and established plausible grounds that he was eligible for

suspension of deportation. See Morales Apolinar, 514 F.3d at 899.

Based on our review of the record, Solis-Padilla has made a reasonable

showing that in October 2003 when he filed his motion to reopen, he would have

been able to meet his burden and show plausible grounds for eligibility for

suspension of deportation. 8 U.S.C. § 1254(a)(2) (1995) (repealed 1996).

However, because the record in this case is not clear, we remand to the BIA to

consider in the first instance whether Solis-Padilla has met his burden of showing

plausible grounds that he is eligible for suspension of deportation, and, if

warranted, to remand to the IJ for further development of the record.

GRANTED and REMANDED.

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