Maria Corado Rodriguez, and Juan Carlos Corado Moreno v. Immigration & Naturalization Service

828 F.2d 622 Maria CORADO RODRIGUEZ, and Juan Carlos Corado Moreno, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 85-7417. United States Court of Appeals, Ninth Circuit. Argued Aug. 7, 1986. Submitted Sept. 10, 1987. Decided Sept. 25, 1987. As Amended Nov. 5, 1987. Della Hinn Bahan, Ellen L. Lutz, Joel R. Reynolds, and Felicia A. Marcus, Los Angeles, Cal., for petitioners. Stewart Deutsch, Dept. of Justice, Washington, D.C., for respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before ANDERSON, PREGERSON and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: I. Introduction 1 Maria Corado Rodriguez and Juan Carlos Corado Moreno (the "Corados"), a Salvadoran mother and her young son, petition for review of the Board of Immigration Appeals' (BIA) decision dismissing their appeal of their final deportation orders and denying their motion to reopen. They claim that the BIA erred in dismissing their appeal despite the incompetence of their counsel and the absence of a full and fair hearing prior to deportation. The Corados also aver that, contrary to the BIA's holding, they did establish a prima facie case of persecution…

I. Introduction

Maria Corado Rodriguez and Juan Carlos Corado Moreno (the “Corados”), a Salvadoran mother and her young son, petition for review of the Board of Immigration Appeals’ (BIA) decision dismissing their appeal of their final deportation orders and denying their motion to reopen. They claim that the BIA erred in dismissing their appeal despite the incompetence of their counsel and the absence of a full and fair hearing prior to deportation. The Corados also aver that, contrary to the BIA’s holding, they did establish a prima facie case of persecution and, consequently, their motion to reopen should have been granted. Because we reverse the BIA’s denial of their motion, we express no opinion on their due process claim alleging incompetence of counsel and the denial of a full and fair hearing.

II. Proceedings Below

The Corados were charged with having entered the United States in July 1984 without inspection by an immigration officer, in violation of Section 241(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251 (a)(2) (1982). At the deportation proceeding on January 4, 1985, petitioners conceded deportability. They did not apply for asylum or…

concurring and dissenting:

I concur in much of what is stated, but I respectfully dissent from a portion of Judge Reinhardt’s forceful majority opinion. I do so on a narrow ground.

It is, in my view, inappropriate for this court to direct the granting of the petitioner’s motion, be it denominated a motion to reopen or to remand. We should merely *630 reverse for further proceedings and direct that the BIA reconsider and apply Cardoza-Fonseca. The decision to reopen or remand should be made in the first instance by the BIA.

The second requirement for reopening has never been addressed by the BIA and, on this record, it is doubtful that Corado-Rodriguez has satisfied that second requirement. There is no evidence to support her failure to present evidence at the previous hearing. See, e.g., Aviles-Torres, 790 F.2d 1433, 1436 (9th Cir.1986), 8 C.F.R. 3.2 and 3.8. There are allegations of ineffective assistance of counsel which may have prevented it. However, the BIA never decided that issue, holding instead that even assuming there was ineffective assistance of counsel, she did not establish a prima facie case. If we direct a grant of the motion to remand (reopen), we are saying,…