Jean Ordonez-Garay v. Jefferson Sessions

FILED NOT FOR PUBLICATION JAN 22 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JEAN CARLOS ORDONEZ-GARAY, No. 14-72311 Petitioner, Agency No. A079-152-042 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 17, 2017 San Francisco, California Before: LEAVY, W. FLETCHER, and PAEZ, Circuit Judges. Jean Carlos Ordonez-Garay petitions for review from a Board of Immigration Appeals (“BIA”) decision upholding the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture, and affirming the Immigration Judge’s determination that he is * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition. Ordonez-Garay first raises claims of ineffective assistance of counsel by two attorneys. “Ineffective assistance of counsel amounts to a violation of due process if ‘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) (quoting Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)). “To make out an ineffective assistance claim, an immigrant must show (1) that counsel's performance was deficient, and (2) that counsel's deficiency caused prejudice.” Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008). We find prejudice where counsel’s deficient performance may have affected the outcome of the proceedings; we do not require petitioners to show “that the counsel's ineffectiveness definitively changed the outcome.” Mohammed, 400 F.3d at 793. Ordonez-Garay’s first attorney conceded before the IJ that Ordonez-Garay had falsely claimed to be a United States citizen. An attorney is not ineffective in conceding damaging facts where she comes to her decision “after carefully weighing all the relevant facts and exploring the available legal options.” Santiago- Rodriguez v. Holder, 657 F.3d 820, 832 (9th Cir. 2011). Here, however, nothing in the hearing transcripts or in the attorney’s response to Ordonez-Garay’s inquiry 2 letter suggests that she explored the possibility of raising a retraction defense to the false claim to citizenship, despite a clear basis for such a defense in the documents at her disposal, and even though a finding of inadmissibility based on a false claim to citizenship has the “drastic impact” of acting as a “lifetime bar” to admissibility. See Munoz-Avila v.Holder, 716 F.3d 976, 981 (7th Cir. 2013). This failure to consider an obvious basis for relief fell below an objective standard of professional competence and was therefore deficient. In spite of the first attorney’s concessions, the IJ exercised her discretion to permit Ordonez-Garay’s second attorney to put on evidence regarding the charged false claim to citizenship. See 8 C.F.R. § 1240.10(c), (d). Although the second attorney had ample resources and adequate opportunity to prepare a defense, he refused “on principle” to offer ...

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