Mariano Granados-Oseguera v. Alberto R. Gonzales, Attorney General

464 F.3d 993 Mariano GRANADOS-OSEGUERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-73030. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 17, 2006. Filed September 25, 2006. Mary Beth Canty, Laura Boyle, Josh Chetwynd, Law Students, Tucson, AZ, argued the case for the petitioner; Willie M. Jordan-Curtis, Ph.D., J.D., Esq, Assistant Dean for Student Affairs and Associate Clinical Professor of Law, The University of Arizona, Rogers College of Law, Pro Bono Appellate Project, Tucson, AZ, was on the briefs for the petitioner. Arthur L. Rabin, Department of Justice, Washington, D.C., argued the case for the respondent; Peter D. Keisler, Assistant Attorney General, Michelle Gorden Latour, Assistant Director, Linda S. Wendtland, Assistant Director, and Cindy S. Ferrier, Senior Litigation Counsel, Washington, D.C., were on the briefs for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Azz-jmd-phw. Before: B. FLETCHER, TASHIMA, and CALLAHAN, Circuit Judges. BETTY B. FLETCHER, Circuit Judge: I. 1 Mariano Granados-Oseguera petitions for review of the Board of Immigration Appeals'…

I.

Mariano Granados-Oseguera petitions for review of the Board of Immigration Appeals’ (BIA’s) affirmance of an Immigration Judge’s (IJ’s) denial of cancellation of removal as well as the BIA’s denial of his motion to reopen proceedings to allow him to apply for adjustment of status.

We deny Granados-Oseguera’s petition as to his equal protection claim based on a claim of disparate treatment of different classes of aliens; it does not violate Petitioner’s equal protection rights to treat aliens permitted voluntarily to depart differently from aliens not eligible for voluntary departure with respect to the amount of time in which they may file a motion to reopen proceedings. 1 de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir.2004). We grant Granados-Oseguera’s petition as to the BIA’s denial of his motion to reopen proceedings and as to his ineffective assistance of counsel (IAC) claim — the two are related. In the limited situation where an alien is represented by the same allegedly incompetent counsel throughout agency proceedings including through the filing of his motion to reopen proceedings before the BIA and therefore cannot administratively exhaust 2 a claim for…

dissenting:

I concur with my colleagues’ rejection of Granados-Oseguera’s equal protection claim. I must dissent, however, from their expansion of our jurisdiction — in contravention of our precedents — to reach an ineffective assistance of counsel claim that has never been raised before the Board of Immigration Appeals (BIA) and is not supported by substantial evidence.

On September 6, 2002, the BIA summarily affirmed the IJ’s decision denying Granados-Oseguera’s application for cancellation of removal. The IJ allowed him 30 days in which to voluntarily depart the country, and warned that his failure to depart would undermine any chance he might have of re-entry for ten years. The petitioner did not depart the country within the allotted time. He did not file anything with the BIA, or any court until December 6, 2002, when he filed a motion to reopen with the BIA “so that he could continue to apply for labor certification in the United States.” His supplement to the motion to reopen requested that his failure to leave the country be excused because his father and daughter became ill during the period for voluntary departure. On July 23, 2003, the BIA denied the motion to reopen…