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attorneyappealmotionvisa
attorneyappealmotion

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Salazar-Gonzalez v. Lynch

Facts

Alfredo Salazar-Gonzalez, a native of Mexico, was in the U.S. illegally when he was detained by immigration authorities in 2008. He conceded removability and applied for cancellation of removal while also pursuing an I-130 visa through his U.S. citizen wife. His attorney, Jeff Griffiths, advised him to accept voluntary departure instead of appealing the denial of his cancellation application, incorrectly believing he would qualify for the visa. After returning to Mexico, Salazar-Gonzalez learned he was ineligible for the visa and faced a ten-year bar to reentry.

Alfredo Salazar-Gonzalez, a native of Mexico, was in the U.S. illegally when he was detained by immigration authorities in 2008.

Issue

Did the BIA err in denying equitable tolling for Salazar-Gonzalez's motion to reopen his removal proceedings based on ineffective assistance of counsel?

Did the BIA err in denying equitable tolling for Salazar-Gonzalez's motion to reopen his removal proceedings based on ineffective assistance of counsel?

Rule

The requirements for equitable tolling due to ineffective assistance of counsel include demonstrating that the petitioner was prevented from timely filing due to prior counsel's ineffectiveness, showing due diligence in discovering the error, and complying with procedural requirements.

The requirements for equitable tolling due to ineffective assistance of counsel include demonstrating that the petitioner was prevented from timely filing due to prior counsel's ineffectiveness, showing due diligence in discovering the error, and complying with procedural requirements.

Analysis

The court determined that Griffiths's advice to forgo an appeal and return to Mexico was not a reasonable tactical decision, as it led to Salazar-Gonzalez's complete forfeiture of the right to appeal. The BIA's characterization of this advice as tactical was an abuse of discretion, given that it was based on a fundamentally flawed understanding of the law regarding the I-130 visa eligibility. The court found that Salazar-Gonzalez suffered prejudice as a result of this ineffective assistance.

The court determined that Griffiths's advice to forgo an appeal and return to Mexico was not a reasonable tactical decision, as it led to Salazar-Gonzalez's complete forfeiture of the right to appeal.

Conclusion

The Ninth Circuit granted Salazar-Gonzalez's petition and remanded the case, concluding that he was entitled to equitable tolling due to his counsel's deficient performance.

The Ninth Circuit granted Salazar-Gonzalez's petition and remanded the case, concluding that he was entitled to equitable tolling due to his counsel's deficient performance.

Who won?

Salazar-Gonzalez prevailed in the case because the court found that his prior attorney's advice constituted ineffective assistance, which prejudiced his ability to appeal.

Salazar-Gonzalez prevailed in the case because the court found that his prior attorney's advice constituted ineffective assistance, which prejudiced his ability to appeal.

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