Juan Huerta v. Eric H. Holder Jr.

MEMORANDUM *

Juan Pablo Huerta, a native and citizen of Mexico and formerly a legal permanent resident of the United States, petitions for *173 review of the Board of Immigration Appeals’ (BIA or Board) denial of his motion to reopen on the basis of ineffective assistance of counsel.

Reviewing the BIA’s decision on Huerta’s ineffective assistance claim de novo, we conclude that Huerta has demonstrated both that his former counsel, Gary Finn, failed to perform with sufficient competence and that he was prejudiced by counsel’s performance. See Ahmed v. Mukasey, 548 F.3d 768, 771 (9th Cir.2008); Mohammed v. Gonzales, 400 F.3d 785, 791-93 (9th Cir.2005).

Competence: Huerta had two potential grounds for relief from removal: adjustment of status and cancellation of removal. Finn attempted to preserve Huerta’s eligibility for the latter, but not for the former. This was deficient performance, especially given that adjustment of status can lead eventually to naturalization as a United States citizen, a potential avenue for permanent relief that should not be abandoned lightly.

To preserve Huerta’s eligibility for adjustment of status, a reasonably competent attorney would have…

dissenting:

I respectfully dissent. We review for abuse of discretion a decision of the Board of Immigration Appeals denying a motion to reopen. See Singh v. Holder, 658 F.3d 879, 885 (9th Cir.2011). The BIA abuses its discretion only if it renders a decision that is “arbitrary, irrational or contrary to law....” Id. (citation omitted).

When a motion to reopen is premised on a claim of ineffective assistance of counsel, the claim has merit only to the extent that a due process violation occurred, namely that “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.... ” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.2005) (citation omitted).

In 2005, when the BIA was considering Juan Huerta’s removal, no case existed holding that a conviction under CaLPenal Code § 12034(b) was not a crime involving moral turpitude. As a result, no violation of due process resulted from counsel’s fail *175 ure to appeal a ruling that was not contrary to any existing precedent.

Neither was counsel ineffective for electing not to move to reopen the case following Huerta’s marriage to a United States citizen. Reopening was within the BIA’s…

FILED

NOT FOR PUBLICATION JUN 15 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN PABLO HUERTA, No. 09-70079

Petitioner, Agency No. A090-494-986

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 8, 2012 Pasadena, California

Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.

Juan Pablo Huerta, a native and citizen of Mexico and formerly a legal

permanent resident of the United States, petitions for review of the Board of

Immigration Appeals’ (BIA or Board) denial of his motion to reopen on the basis

of ineffective assistance of counsel.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Reviewing the BIA’s decision on Huerta’s ineffective assistance claim de

novo, we conclude that Huerta has demonstrated both that his former counsel, Gary

Finn, failed to perform with sufficient competence and that he was prejudiced…