Salazar-Gonzalez v. Lynch – 9th Circuit Holds Equitable Tolling of Motion to Reopen Available Where Prior Lawyer Provided Ineffective Assistance of Counsel
On August 20, 2015, the Ninth Circuit Court of Appeal decided Salazar-Gonzalez v. Lynch, No. 11-73600 (9th Cir. 2015). The case holds that the deadline to file a motion to reopen an immigration case, normally 180 days, can be extended where the client’s prior lawyer committed ineffective assistance of counsel.
In this case, Mr. Salazar-Gonzalez came to the United States when he was two years old. His wife and children are United States citizens, and his parents are lawful permanent residents. He was detained in 2008 and placed in immigration proceedings. He hired a lawyer from San Francisco to represent him. He conceded removability in court and applied for Cancellation of Removal. That application was denied.
Instead of appealing, Mr. Salazar-Gonzales left the United States on the advice of his lawyer so that he could obtain a green card tthrough consular processing. The problem is, he was statutorily ineligible to do so. What his lawyer failed to account for is that after coming to the United States at the age of two, Mr. Salazar Gonzales returned to Mexico briefly in 2003 for a funeral, as so often happens with undocumented immigrants.
Since Mr. Salazar Gonzalez had been in the United States for over a year without the permission of the government before leaving for the funeral, his departure and unauthorized reentry into the United States made him eligible for a waiver of his unauthorized presence. His lawyer completely failed to advise him of this fact. Instead, his lawyer actually advised him to do something that was legally impossible, separating him from his entire family with little legal recourse. The court held that this wasn’t a strategic move on his lawyer’s part. It was a mistake.
The Ninth Circuit wrote, “sometimes, it is difficult to distinguish between a client’s bad luck and a lawyer’s bad advice. Risk is an inherent part of litigation, and lawyers must weigh countless probabilities when advising their clients on what claims to pursue, motions to file, and arguments to raise. This case, however, involves no dynamic assessment of risk: Salazar-Gonzalez’s lawyer advised him to pursue a form of immigration relief that Salazar-Gonzalez was statutorily ineligible to receive. Steering a client into such a dead-end is not a “tactical decision[],” as the Board of Immigrations Appeals put it. It is ineffective assistance of counsel. Although we have observed that “[a] lawyer is often the only person who could thread the labyrinth” of the immigration laws, Castro-O’Ryan v. I.N.S., 847 F.2d 1307, 1312 (9th Cir. 1988), that observation breaks down when the lawyer does not know the way. We grant the petition and remand with instructions to grant the motion to reopen.”
You can read the full text of the decision here: http://law.justia.com/cases/federal/appellate-courts/ca9/11-73600/11-73600-2015-08-20.html