Solis-Chavez v. Holder

662 F.3d 462

Jorge SOLIS–CHAVEZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 10–1354

11–1243.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 1, 2010.Decided Oct. 25, 2011.

Lisa J. Palumbo (argued and submitted), Attorney, Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Petitioner.

OIL, Kelly J. Walls (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Jorge Solis–Chavez is a native of Guatemala who has been a lawful permanent resident in the United States since 1980. In 2007 he faced removal as a result of a 1989 Illinois conviction for sexual abuse of a minor. He initially argued that he was not subject to removal because the judge who convicted and sentenced him issued a judicial recommendation against deportation (“JRAD”). If valid, a JRAD prohibits the Department of Homeland Security (“DHS”) from using a conviction as a basis for removing an alien. Here, the JRAD would have provided a complete defense to removal. But before the Immigration Judge (“IJ”) rendered a decision, Solis–Chavez's attorney conceded, without consulting his client, that the JRAD was invalid because it was entered outside the 30–day postsentencing window specified in the JRAD statute.

Shortly thereafter, Solis–Chavez retained new counsel and sought to revive the JRAD claim. The Board of Immigration Appeals (“BIA”) held that prior counsel had waived the issue. Solis–Chavez petitioned for review. At oral argument we suggested that counsel's concession before the IJ was uninformed and Solis–Chavez might seek to reopen his case based on ineffective assistance of counsel. Solis–Chavez promptly moved to reopen, but the BIA denied the motion. The Board held that the concession was not prejudicial because the JRAD was untimely and therefore invalid. Solis–Chavez again petitioned for review, and we consolidated the petitions for decision.

We now grant the petitions and remand to the BIA for further proceedings. The JRAD was valid. Although it was entered about a month outside the 30–day postsentencing window, the state-court record confirms that the judge unequivocally indicated her intent to retain jurisdiction for the express purpose of considering a JRAD, and the recommendation was thereafter entered without opposition from immigration authorities or the state prosecutor. The JRAD statute (repealed in 1990) is silent on whether noncompliance with the 30–day time limit is a defect that strips the court of authority to enter the recommendation. Dolan v. United States, ––– U.S. ––––, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010), suggests that the missed deadline does not extinguish the court's authority—at least where, as here, the judge timely announced her intent to consider a JRAD and continued the case for that purpose.

Accordingly, conceding the JRAD's invalidity was gravely prejudicial to Solis–Chavez's defense against removal. The BIA must determine on remand whether counsel's concession amounts to a denial of due process, as required for claims of ineffective assistance of counsel in immigration proceedings. We also direct the BIA to clarify two issues it failed to address in Solis–Chavez's first petition.

I. Background

In 1980 Solis–Chavez entered the United States from Guatemala as a lawful permanent resident. In 1987 he was arrested and charged in Cook County, Illinois, with aggravated criminal sexual abuse of a victim under 13 for allegedly touching a girl's buttocks. Solis–Chavez pleaded not guilty and was convicted following a one-day bench trial in January 1989. On March 16, 1989, the judge sentenced him to 24 months' probation.

At that time federal immigration law included the JRAD provision, which allowed the sentencing judge to issue a statement at sentencing or within 30 days thereafter indicating that the defendant's conviction could not be used by immigration authorities as a basis for deportation. Although called a “recommendation,” the command of a JRAD was mandatory. See 8 U.S.C. § 1251(b)(2) (repealed 1990); Janvier v. United States, 793 F.2d 449, 452 (2d Cir.1986).

At sentencing the judge said Solis–Chavez was a good candidate for a JRAD because unlike most sexual assaults, “the victim in this matter was not harmed in any substantial way.” Before the judge could formally consider a JRAD, however, Solis–Chavez was required to give notice to immigration authorities so they could register any opposition. Solis–Chavez's attorney said he would notify the authorities, and the judge scheduled a hearing on April 13 for any postsentencing issues, including the JRAD. The judge said she would “go ahead and conclude the sentencing portion of this case” but would “certainly keep this matter on [the] call” to permit Solis–Chavez's counsel to proceed with the JRAD notice. She said the case presented “a novel situation” and that she “anticipat[ed] further proceedings on this matter.” With these comments the court continued Solis–Chavez's bond and “retain[ed] jurisdiction for 30 days.”

On April 13 the judge was in the middle of a jury trial. When the clerk called Solis–Chavez's case during a break in the proceedings, his attorney was not present. At that moment the judge could not recall the purpose of the hearing, saying only that the case was “up today for post-sentencing motions; whatever those were going to be, I have no idea.” Because of her ongoing trial, the judge could not wait for Solis–Chavez's attorney to arrive, so she continued the case until May 23. On that date—68 days after she sentenced Solis–Chavez—the judge entered a JRAD without opposition from the prosecutor or the immigration authorities.

Solis–Chavez served his probation without incident and avoided further criminal charges. In 2004 he filed a naturalization application and subsequently passed a citizenship test. Three years later, however, Solis–Chavez learned that his application had stalled based on complications with his background check. DHS subsequently arrested Solis–Chavez and charged him with two grounds of removability: (1) as an alien convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii); and (2) as an alien convicted of a crime of child abuse, id. § 1227(a)(2)(E)(i). Both charges were based on the 1989 conviction.

Solis–Chavez admitted the factual allegations and conceded removability on the basis of the first charge but not the second. He also moved to terminate the proceedings based on the JRAD. But when the parties discovered that the JRAD had not been entered within 30 days of sentencing, Solis–Chavez's attorney conceded its invalidity. Thereafter, counsel focused on other arguments, including a request that the IJ stay removal proceedings to allow Solis–Chavez's naturalization application to go forward. The IJ found Solis–Chavez removable on both charges, held that the JRAD argument was waived, and rejected the remaining arguments.

Solis–Chavez appealed to the BIA. Represented by new counsel, Solis–Chavez argued that the JRAD was valid despite its untimeliness. He also reiterated the arguments concerning the crime-of-child-abuse charge and the naturalization application. The BIA dismissed the appeal. The Board explicitly declined to reach the merits of the JRAD issue, finding that Solis–Chavez's counsel had waived it before the IJ. The BIA addressed and rejected some of the other arguments but never addressed Solis–Chavez's contention that he could not be deported on the basis of a crime of child abuse or that removal proceedings should be stayed to allow him to press his naturalization application.

Solis–Chavez petitioned for review. At oral argument we suggested that the waiver of the JRAD issue constrained our review but also that Solis–Chavez might have a claim for relief based on his attorney's mistaken concession of what appeared to be a valid claim for a mandatory form of relief from removal. We suggested as well that a motion to reopen before the BIA might be appropriate. While we had the petition under advisement, Solis– Chavez moved to reopen the proceedings before the BIA. The BIA denied the motion, holding that the JRAD was untimely and therefore counsel's concession was not prejudicial. Solis–Chavez again petitioned for review. We consolidated the petitions for decision.

II. Discussion

In both opinions under review, the BIA conducted its own analysis rather than supplementing or adopting the analysis of the IJ, so our focus is on the BIA's decisions. Chen v. Holder, 604 F.3d 324, 330 (7th Cir.2010). We review the agency's legal determinations de novo, but defer to the BIA's reasonable interpretations of its own regulations. Mancillas–Ruiz v. Holder, 625 F.3d 993, 996 (7th Cir.2010).

A. JRAD and Due Process

We begin with the BIA's denial of Solis–Chavez's motion to reopen based on ineffective assistance of counsel. If successful, this claim could serve as a complete bar to removal. As we have noted, the effect of a JRAD is mandatory and prevents removal based on the conviction to which it applies.

Although removal has serious consequences, it is a civil proceeding. Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1481, 176 L.Ed.2d 284 (2010). As such, aliens in immigration proceedings do not have a Sixth Amendment right to the effective assistance of counsel. Pervaiz v. Gonzales, 405 F.3d 488, 489–90 (7th Cir.2005). They do, however, have a due-process right to a fair hearing. Kay v. Ashcroft, 387 F.3d 664, 676 (7th Cir.2004). The BIA has a body of caselaw holding that an alien's due-process rights can be violated by his attorney's ineffective assistance in removal proceedings. See generally Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). But see Surganova v. Holder, 612 F.3d 901, 907 (7th Cir.2010) (reviewing Lozada 's subsequent history and noting that “the legal standards that the BIA...