Angeles Castro v. Gonzales

dissenting.

I dissent. Petitioners in this case, Manuel Angeles Castro and Margarita Lopez Flores, were the victims of a “notario” service that contracted with unscrupulous attorneys and cheated Petitioners out of the opportunity to present their case fully. According to Petitioners, they met a person who falsely promised them that they were eligible for permanent residency and who filed a fraudulent asylum application with the INS on their behalf. This person did not tell them what was being done for them or why. After the INS denied Petitioners’ affirmative asylum applications, their cases were referred to immigration court, where Petitioners withdrew their asylum applications and applied for suspension of deportation. The person who filed the first round of applications with the INS took Petitioners to the “International Law Center” for help. Petitioners were told that the International Law Center was an office of attorneys, and Petitioners signed a contract for representation with the International Law Center.

The applications for suspension of deportation filed on Petitioners’ behalf were woefully inadequate. The evidence supporting the applications did not meet the minimum…

MEMORANDUM *

Petitioners seek review of the Board of Immigration Appeal’s (BIA) denial of their motion to reopen. Petitioners were put in deportation proceedings in 1996. They conceded deportability and applied for suspension of deportation and, in the alternative, voluntary departure. In 2001, an immigration judge held that the petitioners were not eligible for suspension of deportation and granted voluntary departure. Petitioners appealed to the BIA. The BIA summarily affirmed. Petitioners then sought to have the proceedings reopened with the BIA based on a Fifth Amendment due process claim of ineffective assistance of counsel. The BIA denied the motion to reopen. Petitioners petition for review.

We have jurisdiction to review the petitioners’ due process challenge. See REAL ID Act of 2005, 8 U.S.C. § 1252 ; Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir.2005). In order to grant the relief requested by the petitioners’ claim of ineffective assistance of counsel we must find both deficient performance by the petitioners’ counsel and prejudice. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003).

Even if we were to hold that counsel provided deficient performance, see…