FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ISRAEL SANCHEZ ROSALES; MA No. 18-70666 ANTONIA MARTINEZ HERNANDEZ SANCHEZ, AKA Maria Antonia Agency Nos. Hernandez Sanchez, A205-552-109 Petitioners, A205-552-110 v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 13, 2020 * Pasadena, California Filed November 18, 2020 Before: Kim McLane Wardlaw and Lawrence VanDyke, Circuit Judges, and Jennifer Choe-Groves, ** Judge. * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 SANCHEZ ROSALES V. BARR Opinion by Judge Choe-Groves; Dubitante Opinion by Judge VanDyke SUMMARY *** Immigration The panel granted a petition for review of the Board of Immigration Appeals’ decision denying a motion to reopen filed by Israel Sanchez Rosales and Maria Antonia Martinez Hernandez Sanchez, and remanded, concluding that, under circuit precedent, a showing of prejudice is not required when ineffective assistance of counsel leads to an in absentia order of removal. Petitioners were ordered removed in absentia in 2014. The BIA denied their first motion to reopen, which had averred that Israel had been told by the immigration court that Petitioners’ hearing was not on the court’s calendar. Although this motion to reopen and the subsequent appeal appeared to have been prepared pro se, petitioners later repeatedly asserted that the documents were prepared by a non-attorney notario named Carlos Lewis. In 2017, Petitioners filed their second motion to reopen, claiming that Lewis instructed them not to attend their hearing before the immigration judge. The BIA denied the motion. The panel concluded that the BIA erred by denying the motion on the ground that the denial of Petitioners’ first *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SANCHEZ ROSALES V. BARR 3 motion to reopen had been “legally correct.” The panel explained that Lewis’ ineffective assistance had not yet been disclosed when the agency decided the first motion to reopen, and therefore, relying solely on the previous decision impermissibly ignored the central argument of the second motion. The panel next concluded that the BIA erred in denying the motion on the ground that Petitioners had not shown that “they were prejudiced by ineffective assistance or fraud.” The panel explained that, in Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003), the court concluded that the BIA does not normally require a showing of prejudice when a motion for rescission of an in absentia removal order is grounded on ineffective counsel. Accordingly, the panel remanded to the BIA to evaluate Petitioners’ motion without requiring a showing of prejudice. Dubitante, Judge VanDyke agreed that circuit precedent compelled the result in this case, but wrote separately because he concluded that that precedent is silly and well illustrates the court’s nasty ...
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