ESCOBAR GRIJALVA v INS-9871469v2 Amended June 20, 2000statutory right to counsel in a timely fashion

JESUS ESCOBAR-GRIJALVA,                               No. 98-71469
Petitioner,
INS No.
v.                                                    A72-519-396
IMMIGRATION AND NATURALIZATION                        ORDER AND
SERVICE,                                              AMENDED
Respondent.                                           OPINION

On Petition for Review
of an Order of the Board of Immigration Appeals.

Argued and Submitted
November 5, 1999--Pasadena, California

Filed March 24, 2000
Amended June 20, 2000

Before: Harry Pregerson, John T. Noonan, and
Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge Noonan;
Dissent by Judge O'Scannlain

_________________________________________________________________

COUNSEL

Abbe Allen Kingston, Kingston, Martinez & Hogan, Santa
Barbara, California, for the petitioner.

Heather R. Phillips, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for the
respondent.

_________________________________________________________________

ORDER

The opinion filed on March 24, 2000 is amended as fol-
lows:

Slip opinion, p. 3469, sec. [4]. After P 1, add:

The INS contends that Escobar did not raise the denial of
her statutory right to counsel in a timely fashion. But her
claim of counsel so ineffective in assisting her that it deprived
the administrative proceeding of due process encompassed the
denial of the statutory right; the latter denial was the founda-
tion of what followed. We decide the appeal on this narrower,
statutory basis. See Rios-Barrios v. INS, 776 F.2d 859, 862
(9th Cir. 1985).

_________________________________________________________________

OPINION

NOONAN, Circuit Judge:

Jesus Escobar-Grijalva petitions for a review of an order of
the Board of Immigration Appeals (the Board) denying her
asylum and withholding of deportation. Holding that she was
denied the right to counsel given her by 8 U.S.C.S 1362, we
grant her petition and remand for proceedings consistent with
this opinion.

PROCEEDINGS

On October 24, 1996 a hearing on Escobar's application for
asylum and withholding of deportation was held. She alleged
persecution on account of her political opinion in Guatemala.
She participated in the hearing through a Spanish-speaking
interpreter.

The hearing began as follows:

JUDGE FOR THE RECORD

This is a continued proceeding at Los Angeles, California
on October 24, 1996, in deportation proceedings in the matter
of Jesus Escobar-Grijalva, A 72 519 396. On behalf the
respondent, no attorney or representative has appeared. And
on behalf of the Service, general attorney Mr. Alan Youtsler.
The official Spanish interpreter and court clerk is Sinyova
(phonetic sp.) Lopez.

JUDGE TO MS. ESCOBAR

Q. To the respondent, Ms. Escobar, it is now five after
two, over an hour --

A. Oh, wait, wait, Your Honor. I apologize.

Q. Oh, thank you. Over an hour past the scheduled time
that your case was scheduled for a hearing. We have waited
your attorney. That is, at the last hearing -- well, previous
hearings you have had various attorneys, Mr. Davis, Ms.
McGuire, Ms. Scott, and you continue apparently to be repre-
sented by attorneys from that office. Who is your present
attorney, because no one is with you.

A. It's a new American one.

Q. A new American one? What is the name of this attor-
ney?

A. I don't know.

Q. Well, where is he, ma'am? I mean, you were sitting
here and your attorney's not here.

A. (Indiscernible). He told me that he was already here.
But I didn't see him.

Q. Have you even met this new attorney, yet, ma'am?
This new American attorney as you described him to be?

A. Yes, I saw him.

Q. What is the name of this attorney? It looks like Jeremy
Frost is his name. Is that his name?

A. (Indiscernible).

Q. A man, according to the writing in here, at least. He
is still part of the same law office of McGuire and company.
But, my question to you, ma'am, is where is any of your attor-
neys? Where are they?

A. I don't know, it -- can you allow me to go out and
see.

Q. Well, ma'am, have you seen them today at all? Any of
your attorneys?

A. Yes, I did see him.

Q. You saw Mr. Frost?

A. Yes.

Q. Or was this gentleman his assistant that you saw,
ma'am? Don't get the two confused.

A. No, it (indiscernible).

Q. Okay, and he said he would be representing you?
When did you last see him? When did you last see him
ma'am?

A. I just saw him before I got in here. Would you please
allow me to go out one moment.

Q. We'll have the court interpreter go out there and call
his name.

(OFF THE RECORD)

(ON THE RECORD)

JUDGE FOR THE RECORD

Back on the record. Off the record, the court interpreter
would [list] the respondent's witness.

JUDGE TO MR. FROST

Q. Counsel, I understand you're Jeremy Frost, is that
right?

A. That's correct, Your Honor.

JUDGE TO MS. ESCOBAR

Q. Now, ma'am, is this your attorney, Mr. Frost?

A. No.

Q. No?

A. It's another one.

JUDGE TO MR. FROST

Q. Okay, well, counsel, have you ever met your client?
A. No, I haven't , Your Honor. But I'm -- I'm from --

[MS. ESCOBAR TO JUDGE]

A. He hasn't seen me.

JUDGE TO THE INTERPRETER

Q. Wait, wait. Let -- let her finish. What--what's that?

A. He -- it's another gentleman.

Q. Okay, well, Mr. Frost is from the law offices of Ter-
ance McGuire. He is one -- apparently one of the new attor-
neys.

A. Actually --

Q. This is not the person you -- you met outside? The
new attorney you said -- the new American attorney?

A. With a black jacket.

JUDGE TO MR. FROST

Q. Counsel, do you have any idea who that is?

A. No, I don't, Your Honor.

Q. Is that one of your assistants maybe? One of your
clerks or something?

A. I'm -- I'm not even with McGuire's office. I'm with
Jim Valanti (phonetic sp.) -- Valinoti.

Q. You're with Valinoti? Well --

A. Yeah.

Q. -- (indiscernible) really confusing me, because your
-- your notice comes in -- in McGuire's office's name, not
Valinoti's. And is there some reason why you submitted a
notice with another law firm? I mean, I'm really confused
now. If you're with Mr. Valinoti's office, why are you sub-
mitting a notice under Mr. Terance McGuire's offices?

A. Your Honor, I'm a little confused too. And if I could
call a recess for five minutes to just get it clarified. I -- I
really don't have the answer.

Q. Have you met you client before today, counsel. I
mean, right now, because she said she never saw you before
until you walked in right now.

A. That's true, Your Honor. I've never met her.

Q. And you're going to be presenting her case?

A. Actually, I was hoping to have time, you know,
before, but I just ran from this hearing to this hearing.

MR. YOUTSLER [COUNSEL FOR THE GOVERNMENT]
TO JUDGE

Q. I don't think he can represent her. He hasn't ever met
her before. He has no idea what her case [is] about.

JUDGE TO MR. FROST

Q. Yeah, counsel, I -- at the minimum I'm a little con-
cerned. First of all, whose law firm are you associated with?

A. Jim Valinoti, Your Honor.

Q. Jim Valinoti? Okay, so you're not associated with
McGuire, Scott and Company?
A. No, Your Honor. But if I get a chance to talk with Jim,
maybe I could get some clarification into who is actually han-
dling this file.

Q. No, counsel. I'm going to ask the respondent what she
wants.

A. Okay

JUDGE TO MS. ESCOBAR

Q. Ma'am, do you want this gentleman to represent you?

A. Those are my papers, but if the man is not her--

Q. Well, ma'am, let me tell you, I want to make sure you
understand something. You're going to have basically three
choices. And let me explain to you what they are. You're
going to have the choice, number 1, of choosing this gentle-
man who claims he represents you, although never meeting
you today yet, to represent and present you case today. Or,
you have the choice of proceeding on your own and being
your own attorney and representing yourself today and pre-
senting your case. That's the second choice. Or, the third
choice is, I will give you a continuance to get a new attorney
to represent you. And when I say that, ma'am, if you get a
new attorney, it's not going to be any of the following people.
And I will not allow them to appear. And that includes Mr.
Frost, Mr. McGuire, Mr. Alexander, Ms. Scott or Mr. Davis
or Mr. Valinoti or Mr. Cassarian (phonetic sp.). None of those
people. Because you see, supposedly this gentleman repre-
sents all of them as one of their attorneys. And I'm not about
to continue a case for some -- one of them from the same law
offices to walk in when they should have been ready today to
present your case. So if you don't accept Mr. Frost from these
law firms, none of those individuals will be representing you
at your next hearing. Now if you get a new attorney unrelated
to any of them, I don't have a problem. You're more than
welcome to do that. But I'm not having one of those attorneys
from the same law offices walk in and get a delay because
they don't know what's going on with their cases. They're not
going to get that continuance for that purpose. They're going
to be removed as your attorney, and they're not going to rep-
resent you. So, ma'am, of those three choices, what would
you like? Mr. Frost to present your case today? You to do it
on your own? Or, you can find a new attorney completely
separate and apart from any of these attorneys I've mentioned
(indiscernible) who have filed notices with me.

A. It's okay. If he doesn't miss again, he doesn't, you
know, show up again.

Q. So you want Mr. Frost to represent you? Is that what
you said? Choice number 1?

A. I don't know what he said.

Q. That's what I don't know, ma'am. Is that choice num-
ber 1 you're selecting?

A. It's okay.

Q. That's fine, ma'am. We're going to proceed then.

The hearing continued, with Frost asking some questions.
The IJ denied Escobar's application. She appealed to the
Board on substantive grounds and because of such ineffective
assistance of counsel as to deprive her of due process of law.
The Board affirmed, ruling as to the latter claim that Escobar
had "failed to satisfy all the requirements of an ineffective
assistance of counsel" claim as set out in Matter of Lozada,
19 I&N Dec. 637 (BIA 1988), aff'd. 857 F.2d 10 (1st Cir.
1988).

Escobar petitions for review.

ANALYSIS

The Board relied wholly on its own precedent, Matter of
Lozada, for rejection of Escobar's procedural claim. The affir-
mance of this decision by the First Circuit did not touch on
any general procedural requirement necessary to bring an
ineffective assistance of counsel claim. See Lozada v. INS,
857 F.3d 10 (1st Cir. 1988). Consequently, we address only
the Board's precedent. The Board did lay down a rule: "A
motion based upon a claim of ineffective assistance of coun-
sel should be supported by an affidavit of the allegedly
aggrieved respondent attesting to the relevant facts. . .
[F]ormer counsel must be informed of the allegation and
allowed opportunity to respond." Appropriate disciplinary
authorities must also be notified. Matter of Lozada, 19 I&N

Dec. 637, 639. The Board adopted these rules to handle "the
substantial number of claims of ineffective assistance of coun-
sel" coming before the Board and to "highlight the standards
which should be expected of attorneys who represent persons
in immigration proceedings, the outcome of which may, and
often does, have enormous significance for the person." Id. at
639-640.

[1] The Board's reasonable rules for the normal ineffective
assistance claim are not dispositive here. The facts are plain
on the face of the administrative record -- no need of an affi-
davit to establish them. Frost himself was not Escobar's coun-
sel, nor was she his client -- no need to give him a chance
to defend himself or to give the bar an opportunity to disci-
pline him. What is puzzling is that anyone concerned with the
high standards expected of the immigration bar should
indulge the illusion that Frost could have functioned as coun-
sel for Escobar.

To call Frost her lawyer and Escobar his client mocks the
meaning of what a lawyer is -- a counselor and advocate
knowledgeable of the matters on which he or she provides
counsel and of the cause he or she represents.

[2] Frost had the presence of mind to say he needed time
to talk to Escobar if he was going to represent her. It was not
given him. Counsel for the government had the decency to
object, "I don't think he can represent her. He hasn't ever met
her before. He has no idea what her case is about. " Govern-
ment counsel's advice was ignored by the IJ, who proceeded
to extract from Escobar the response "It's okay " -- a response
equivocal because what "it" refers to is not clear, and Escobar
had just said, "I don't know what he said," apparently refer-
ring to the "options" offered by the judge.

[3] The IJ seems nearly as confused as Escobar. He, first,
identifies Frost with the McGuire law firm, then announces
that he, the judge, is "really confused." The judge goes on to
exclude seven lawyers from being Escobar's counsel if she
chooses a continuance. The judge does so, continuing to con-
fuse Frost with the McGuire office and exercising an unheard-
of prerogative of denying a petitioner the choice of counsel
without any hearing for her or for any of the disqualified
attorneys.

[4] Escobar did not knowingly and freely consent to have
Frost as her counsel. Unprepared and unknowledgeable about
her case, Frost was incapable of instant transformation into
her own counsel. The IJ was exasperated because Escobar's
hearing had been continued before the October 24, 1996 hear-
ing due to failures of Escobar's counsel to show up. But the
IJ's understandable exasperation did not give him authority to
exclude seven lawyers as possible future counsel and to force
a person upon Escobar who had just walked in off the street
and had no more understanding of her case than a stranger.

The INS contends that Escobar did not raise the denial of
her statutory right to counsel in a timely fashion. But her
claim of counsel so ineffective in assisting her that it deprived
the administrative proceeding of due process encompassed the
denial of the statutory right; the latter denial was the founda-
tion of what followed. We decide the appeal on this narrower,
statutory basis. See Rios-Barrios v. INS, 776 F.2d 859, 862
(9th Cir. 1985).

[5] Deprivation of the statutory right to counsel deprives an
alien asylum-seeker of the one hope she has to thread a laby-
rinth almost as impenetrable as the Internal Revenue Code.
Castro-O'Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988).
The IJ's action denying Escobar the right to choose counsel
was an abuse of discretion requiring remand for rehearing
with such counsel as she "shall choose." 8 U.S.C. S 1362.
Castro-Nuno v. INS, 577 F.2d 577, 578-79 (9th Cir. 1978).

The administrative record in this case points to serious
problems in the immigration bar. It gives a picture of attor-
neys shuffling cases and clients, imposing on immigration
judges and on hapless petitioners alike. There is a need to
clean house, to get rid of those who prey on the ignorant. The
starting point is not to make the helpless the victims.

The petition is GRANTED. The case is REMANDED.

_________________________________________________________________

O'SCANNLAIN, Circuit Judge, dissenting:

Because I do not believe that Escobar has successfully
made out a claim of ineffective assistance of counsel, I must
respectfully dissent.

I

With the greatest respect, I disagree with the court's inter-
pretation of the statute governing legal representation in
immigration proceedings. Section 1362 does not require that
Escobar be represented by skilled counsel; indeed, it does not
even suggest that she have counsel at all. 8 U.S.C.S 1362.
The statute merely says that, if she so desires, she has "the
privilege of being represented." To have the privilege of being
represented is not to have a right to counsel that the state must
enforce. Indeed, the statute explicitly declares that whatever
counsel Escobar may retain, it shall be done so "at no expense
to the Government." Since the government is prohibited from
paying for Escobar's representation, then there is the obvious
possibility that she may not be represented at all. How then
is it possible for her cries of ineffective counsel to merit
relief? No counsel is fine, poor counsel is not. The majority's
reading of this statute is baffling.

II

If Escobar does have a viable claim for ineffective assis-
tance of counsel, it can lie only upon a showing that her coun-
sel was "so ineffective as to have impinged upon the
fundamental fairness of the hearing in violation of the fifth
amendment due process clause." Ramirez-Durazo v. INS, 749
F.2d 491, 500 (9th Cir. 1986). The majority evidently believes
that the confusion surrounding the opening of Escobar's hear-
ing was a constitutional violation though it cites no authority
for this proposition. Of course, the majority reaches its con-
clusion without looking at all at the substance of Escobar's
hearing, which covered her arrival in the United States, the
reasons that she departed Guatemala, her brother's member-
ship in a political party and subsequent assassination, the
threats that she received, her life in Mexico before arriving in
the United States, and the nature of her fear of returning to
Guatemala. After guiding her through this broad-ranging dis-
cussion of her asylum claim, her putative counsel then suc-
cessfully qualified Escobar for voluntary departure. Escobar
had ample opportunity to be heard fully and fairly before the
Immigration Judge. Her representation was certainly not stel-
lar, but it was hardly a violation of the Constitution. I cannot
agree with the majority's conclusion that it was.

The majority has done more than simply conclude that
Escobar's representation violated the Constitution, however,
it has presumed so. We have long acknowledged the rule that
the petitioner must show prejudice arising from the conduct
of her attorney to prevail on this claim. See, e.g., Mohsenni-
Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986). Escobar
has made no such argument. Unlike the majority, I decline to
entertain arguments that the parties themselves choose not to
plead.

III

I must also take issue with the majority's treatment of what
it describes as the "Board's reasonable rules for the normal
ineffective assistance of counsel claim." Maj. op. at 3468. The
Board has explicitly made clear its adherence to the proce-
dures outlined in Matter of Lozada, 19 I. & N. Dec. 637
(B.I.A. 1988), aff'd, 857 F.2d 10 (1st Cir. 1988), and our sis-
ter circuits have adopted the procedures it sets forth. See, e.g.,
Henry v. INS, 8 F.3d 426, 439 (7th Cir. 1993); Esposito v.
INS, 987 F.2d 108, 110-12 (2d Cir. 1993). Lozada explicitly
sets forth three requirements for supporting a claim of ineffec-
tive assistance of counsel: (1) an affidavit by the alien setting
forth the agreement with counsel regarding the alien's repre-
sentation; (2) evidence that counsel was informed of the alle-
gations and allowed to respond; and (3) an indication that a
complaint has been lodged with the bar, or reasons explaining
why not.

The majority simply recasts these rules to suit its fancy. No
affidavit is needed, proclaims the majority in debuting its own
rule, when the record is clear. And counsel need not be
informed here because he was not really counsel. Then whose
assistance, pray tell, does the majority believe was ineffec-
tive? The majority would have us believe that Escobar was
represented for the purposes of establishing such representa-
tion was ineffective, but was not represented for the purposes
of following the Board's reasonable rules. Unfortunately, we
do not enjoy the adversary's luxury of reasoning in the alter-
native. Escobar made no attempt to comply with the Lozada
requirements. We therefore cannot entertain her claims of
ineffective assistance of counsel on this record.

IV

As to the merits of Escobar's claim, I note that the majority
has not even attempted to analyze them. Given the substantial
evidence that exists in the record to support the Board's deci-
sion, I would have no difficulty affirming the Board's ruling,
and I therefore respectfully dissent.

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