Daniel Flores v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL FLORES, AKA No. 15-73461

Richard Daniel Flores,

Petitioner, Agency No.

A013-068-941

v.

WILLIAM P. BARR, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted June 13, 2019*

Pasadena, California

Filed July 18, 2019

Before: Kim McLane Wardlaw, Jay S. Bybee, and

John B. Owens, Circuit Judges.

Per Curiam Opinion

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 FLORES V. BARR

SUMMARY**

Immigration

Granting in part and denying in part Daniel Flores’s

petition for review of a decision of the Board of Immigration

Appeals’ denying his untimely motion to reopen based on

ineffective assistance of counsel, the panel concluded that the

BIA applied standards more stringent than were proper in

concluding that Flores had not established prejudice as a

result of his prior counsel’s performance, and remanded.

The BIA denied Flores’s motion to reopen on the ground

that he failed to show his prior counsel’s performance

resulted in prejudice with respect to any of the forms of relief

he would pursue on reopening – asylum, withholding of

removal, protection under the Convention Against Torture

(CAT), and relief under former Immigration & Nationality

Act § 212(c).

Because the agency had concluded that Flores’s

conviction for committing lewd and lascivious acts on a child

under the age of 14 in violation of California Penal Code

§ 288(a) was an aggravated felony, the panel considered

whether it had jurisdiction in light of 8 U.S.C.

§ 1252(a)(2)(C), which bars review of a final order of

removal against an alien who is removable for having

committed certain offenses. The panel concluded that it had

jurisdiction to review: (1) the legal question of whether

Flores’s conviction was an aggravated felony; and (2) the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FLORES V. BARR 3

denial of the motion to reopen to the extent the decision

rested on a ground other than the conviction.

The panel explained that, to establish prejudice in the

context of a motion to reopen based on ineffective assistance

of counsel, it is not necessary for a petitioner to make out a

prima facie case of eligibility for the ultimate relief sought—a

petitioner need only show that counsel’s deficient

performance “may have affected the outcome of the

proceedings” by showing “plausible” grounds for relief.

With respect to asylum and withholding of removal, the

panel concluded that the BIA did not abuse its discretion in

concluding that Flores suffered no prejudice, explaining that

Flores’s § 288(a) conviction was a “sexual abuse of a minor”

aggravated felony under this court’s precedent, and that

Flores failed to identify any intervening higher authority that

is clearly irreconcilable with that precedent. Because Flores

was convicted of an aggravated felony with a sentence of

more than five years, the panel concluded that he was

statutorily ineligible for asylum and withholding of removal

and that, therefore, the BIA did not abuse its discretion in

determining that Flores failed to show prejudice on those

grounds for relief, which were not “plausibly” available to

him.

However, the panel concluded that the BIA abused its

discretion in concluding that Flores failed to show prejudice

with respect to deferral of removal under the CAT.

Specifically, the panel explained that the BIA applied the

wrong standard at this stage of proceedings by concluding

that the evidence Flores submitted with his motion did not

show “a clear probability” that he would be tortured upon his

return to Mexico; although the more-likely-than-not standard

4 FLORES V. BARR

governs the merits of a CAT claim, in the context of a motion

to reopen for ineffective assistance, Flores was only required

to show plausible grounds for relief.

The panel concluded that the BIA made the same error

with respect to Flores’s claim for § 212(c) relief, noting that

the BIA concluded that the additional evidence of hardship

that Flores presented “would not change” the result and

explaining that the BIA abused its discretion by improperly

ruling on the merits of the new § 212(c) evidence in the

context of determining prejudice.

Accordingly, the panel remanded to the BIA to consider

evidence relating to these forms of relief under the correct

standard for prejudice.

COUNSEL

David B. Gardner, Law Offices of David B. Gardner, Los

Angeles, California, for Petitioner.

Matthew B. George, Trial Attorney; Benjamin C. Mizer,

Principal Deputy Assistant Attorney; Douglas E. Ginbsurg,

Assistant Director; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

FLORES V. BARR 5

OPINION

PER CURIAM:

Daniel Flores petitions for review of the Board of

Immigration Appeals’ (BIA) order denying his untimely

motion to reopen his removal proceedings. Flores’s motion

rested on his assertion that he received ineffective assistance

of counsel during his removal proceedings. Although the

BIA agreed with Flores that his prior counsel performed

deficiently, the BIA denied his motion to reopen after

concluding that Flores failed to show prejudice. With respect

to some of Flores’s claims, however, the BIA applied

“standards more stringent than were proper” for determining

prejudice. Maravilla Maravilla v. Ashcroft, 381 F.3d 855,

859 (9th Cir. 2004) (per curiam). We accordingly grant the

petition in part, deny the petition in part, and remand for

further proceedings.

I

A

Petitioner Daniel Flores is a native and citizen of Mexico.

He came to the United States as a lawful permanent resident

in 1962, when he was seven years old, and has continuously

lived in the United States ever since. All of his family—his

elderly mother, his half-brother, two daughters, and several

grandchildren—live in the United States. He has no family

in Mexico.

Starting in the 1970s, Flores began serving as a

confidential informant for law enforcement, participating in

undercover controlled drug buys and testifying against

6 FLORES V. BARR

members of various gangs. Also around that time, Flores

began to amass a lengthy criminal record that culminated in

his pleading guilty in 1990 to two felony counts of

committing lewd and lascivious acts on a child under the age

of 14 in violation of California Penal Code § 288(a). Flores’s

conviction carried with it a six-year prison sentence, of which

he served three. He was released from prison on parole in

1994, discharged from parole in 1997, and has no further

criminal record.

After his release from prison, Flores worked in the

corporate security industry until 2002, when he stopped

working for health reasons. He resumed his role as a

confidential informant for law enforcement in 2008 but was

forced to discontinue his assistance in 2011 following foot

surgery. Today, Flores spends his time taking care of his

mother, who suffers from several serious medical conditions,

including epilepsy, Parkinson’s disease, and dementia.

B

DHS initiated removal proceedings against Flores,

alleging that his conviction under § 288(a) qualified as an

“aggravated felony” conviction for a “crime of violence”

under 8 U.S.C. § 1101(a)(43)(F) and “sexual abuse of a

minor” under 8 U.S.C. § 1101(a)(43)(A), independent bases

rendering Flores removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). After attending a couple of immigration

hearings unrepresented, Flores hired an attorney to represent

him, admitted he was a Mexican citizen, and denied the

charges of removability. An immigration judge (IJ)

concluded that Flores had in fact been convicted under

§ 288(a) and that this conviction constituted both a “crime of

violence” and “sexual abuse of a minor,” at which point

FLORES V. BARR 7

Flores sought only one form of relief from

removal—discretionary relief under former § 212(c) of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c)

(repealed 1996).1 For the agency to exercise its discretion in

favor of granting § 212(c) relief, the applicant must show that

the “the social and humane considerations presented in the

applicant’s favor” outweigh “the adverse factors that

evidence the applicant’s undesirability as a permanent

resident.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923

(9th Cir. 2007) (citation omitted); see Matter of Marin, 16 I.

& N. Dec. 581, 584–85 (BIA 1978).

An IJ heard testimony from Flores, his mother, his half-

brother, and his two daughters. All of Flores’s relatives

supported his request to remain in the United States, stressing

his good character and the hardships his removal would

produce. Nevertheless, the IJ denied Flores’s application

for § 212(c) relief in August 2013. Although the IJ

identified several positive factors bearing on Flores’s

application—including, among others, his many years of

residency in the United States; his close and supportive

relationship with his elderly mother; his work for law

enforcement; and the absence of any criminal conduct since

his release from prison in 1994—the IJ concluded that these

factors did not outweigh the “serious nature” of his § 288(a)

conviction. The IJ also noted Flores’s lack of recent

employment and his failure to “voluntarily” attend counseling

after his release from prison (even though he had attended

counseling while in prison).

1

Although it was repealed in 1996, § 212(c) relief “remain[s]

available, on the same terms as before, to an alien whose removal is based

on a guilty plea entered before § 212(c)’s repeal.” Judulang v. Holder,

565 U.S. 42, 48 (2011) (citing INS v. St. Cyr, 533 U.S. 289, 326 (2001)).

8 FLORES V. BARR

Flores appealed the IJ’s decision to the BIA. Reviewing

the IJ’s decision de novo, the BIA concluded that the IJ

“properly balanced the adverse factors of record evidencing

the respondent’s undesirability as a permanent resident with

the social and humane considerations presented in his behalf

and correctly determined that relief is not in the best interest

of this country.”

Flores then filed a petition for review in this court. The

government moved to dismiss, arguing that we lacked

jurisdiction to review the discretionary denial of § 212(c)

relief. See, e.g., Palma-Rojas v. INS, 244 F.3d 1191, 1192

(9th Cir. 2001) (per curiam). Flores, represented by the same

attorney, never responded. We granted the motion to dismiss

for lack of jurisdiction in June 2015 and denied rehearing

shortly thereafter.

C

In August 2015, Flores, represented by new counsel, filed

a motion with the BIA to reopen his removal proceedings,

alleging that his prior counsel provided ineffective assistance.

Ordinarily, a motion to reopen must be filed within 90 days

of the final removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2), a deadline that had long passed for

Flores. But the 90-day deadline is subject to “equitable

tolling due to ineffective assistance of counsel.”

Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir.

2015). For equitable tolling to apply, the petitioner must

show “(a) that he was prevented from timely filing his

motion due to prior counsel’s ineffectiveness; (b) that he

demonstrated due diligence in discovering counsel’s fraud

or error; and (c) that he complied with the procedural

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA

FLORES V. BARR 9

1988).” Id. (quoting Singh v. Holder, 658 F.3d 879, 884 (9th

Cir. 2011)). In addition to these procedural requirements,

the petitioner “must show that his ‘counsel’s performance

was deficient, and that he suffered prejudice’ as a result.” Id.

(internal alteration omitted) (quoting Singh, 658 F.3d at 885).

Flores contended that his prior counsel provided

ineffective assistance by failing to, among other things,

challenge the grounds for his removability, apply for

withholding of removal and protection under the Convention

Against Torture (CAT), develop sufficient hardship evidence

for his § 212(c) application, prepare his family members for

the § 212(c) hearing, and respond to the government’s motion

to dismiss in this court. Flores attached a sworn declaration

explaining his fear of being tortured in Mexico as a result of

his work helping to prosecute gang members. He also

submitted additional evidence of the hardship he and his

mother would face if he were removed, letters from law

enforcement confirming Flores’s work as a confidential

informant, and evidence of country conditions in Mexico,

including a declaration by a country conditions expert.

The BIA denied Flores’s motion to reopen. Although the

BIA concluded that Flores satisfied the requirements of

Lozada and demonstrated that his prior counsel “did not

perform with sufficient competence,” the BIA found that

Flores failed to show “prejudice” with respect to any of the

forms of relief he would pursue on reopening—asylum,

withholding of removal, and CAT protection. First, the BIA

concluded that Flores’s conviction under California Penal

Code § 288(a)—which, it observed, qualifies as an

“aggravated felony” conviction for “sexual abuse of a minor”

under 8 U.S.C. § 1101(a)(43)(A)—rendered him statutorily

ineligible for asylum, and that the six-year sentence

10 FLORES V. BARR

accompanying that conviction rendered him ineligible for

withholding of removal under the INA and withholding of

removal under the CAT. Second, the BIA concluded that

although Flores is eligible for deferral of removal under the

CAT, his evidence showed a “possib[ility]”—but not “a clear

probability”—that he would be tortured upon his return to

Mexico with the acquiescence of public officials. Third, the

BIA found no prejudice regarding Flores’s new evidence in

support of his § 212(c) application, concluding that this

“additional evidence of hardship to his mother and to

himself” “would not change” the result. Finally, the BIA

rejected Flores’s arguments that he suffered prejudice by his

prior counsel’s failure to prepare witnesses and failure to file

a response to the government’s motion to dismiss.

Because the BIA found no prejudice, it did not address

diligence before rejecting Flores’s request for equitable

tolling and denying his motion to reopen as untimely. Flores

filed a timely petition for review.

II

We first consider whether we have jurisdiction over

Flores’s petition for review. We ordinarily have jurisdiction

under 8 U.S.C. § 1252 to review the BIA’s denial of a motion

to reopen. See Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015).

The government contends, however, that we lack jurisdiction

in this case pursuant to 8 U.S.C. § 1252(a)(2)(C), which

provides that “no court shall have jurisdiction to review any

final order of removal against an alien who is removable by

reason of having committed,” among other offenses, an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).

FLORES V. BARR 11

But as the government admits, we have recognized two

exceptions to this jurisdiction-stripping provision that apply

in this case. First, § 1252(a)(2)(C) does not preclude “review

of constitutional claims or questions of law,” id.

§ 1252(a)(2)(D), including the question whether a particular

conviction is an aggravated felony under the INA. See, e.g.,

Diego v. Sessions, 857 F.3d 1005, 1011 (9th Cir. 2017).

Thus, to the extent Flores argues that his conviction under

§ 288(a) does not qualify as an aggravated felony, we have

jurisdiction to review that purely legal question.

Second, we have held that Ҥ 1252(a)(2)(C) applies only

when—and to the extent that—the agency has found the

petitioner to be removable based on one of the enumerated

criminal grounds.” Unuakhaulu v. Gonzales, 416 F.3d 931,

936 (9th Cir. 2005). Section 1252(a)(2)(C) therefore does not

apply “when the agency ‘does not rely on an alien’s

conviction in denying [the requested] relief.’” Agonafer v.

Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (quoting

Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007)); see

also Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015)

(“[T]he § 1252(a)(2)(C) bar does not apply to the denial of a

procedural motion that rests on a ground independent of the

conviction that triggers the bar.”).2 We therefore retain

jurisdiction to review the BIA’s denial of Flores’s motion to

reopen to the extent the BIA rested its decision on a ground

other than Flores’s conviction under § 288(a).

2

We acknowledge that this exception has been criticized both within

this circuit, see Pechenkov v. Holder, 705 F.3d 444, 449–52 (9th Cir.

2012) (Graber, J., concurring), and outside of this circuit, see, e.g.,

Ortiz-Franco v. Holder, 782 F.3d 81, 90 (2d Cir. 2015); id. at 92 n.1

(Lohier, J., concurring). But the exception “remain[s] good law” that we

as a three-judge panel are bound to apply. Garcia, 798 F.3d at 880.

12 FLORES V. BARR

III

We now turn to the merits of Flores’s petition for review.

We review the BIA’s denial of a motion to reopen for an

abuse of discretion, but review purely legal questions de

novo. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016).

“The BIA abuses its discretion when its decision is arbitrary,

irrational, or contrary to law.” Id. (citation omitted).

As noted above, the BIA denied Flores’s motion to reopen

for one reason—his failure to show prejudice resulting from

his counsel’s deficient performance. “To establish a showing

of prejudice in the context of a motion to reopen, it is not

necessary for a petitioner to make out a prima facie case of

eligibility for the ultimate relief sought—a petitioner need not

show that he would win or lose on any claims.”

Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir.

2015) (per curiam) (internal quotation marks and alterations

omitted) (quoting Maravilla Maravilla, 381 F.3d at 858).

Rather, the petitioner need only demonstrate that counsel’s

deficient performance “may have affected the outcome of the

proceedings” by showing “plausible” grounds for relief. Id.

(quoting Maravilla Maravilla, 381 F.3d at 858). If that

standard is satisfied, the petitioner should be given “another

opportunity to present [his] case before the IJ” with adequate

counsel. Morales Apolinar v. Mukasey, 514 F.3d 893, 899

(9th Cir. 2008).

A

With respect to asylum and withholding of removal, the

BIA did not abuse its discretion in concluding that Flores

suffered no prejudice. An “aggravated felony” conviction

renders an alien ineligible for asylum, 8 U.S.C.

FLORES V. BARR 13

§ 1158(b)(2)(A)(ii), (B)(i); if that conviction resulted in a

prison sentence of at least five years, the alien is also

ineligible for withholding of removal under the INA, id.

§ 1231(b)(3)(B), and withholding of removal under the CAT,

8 C.F.R. § 1208.16(d)(2). One such “aggravated felony” is

“sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).

Flores challenges the BIA’s conclusion that his conviction

under California Penal Code § 288(a) qualifies as a

conviction for “sexual abuse of a minor.”

We have already answered this question and “repeatedly

held that California Penal Code § 288(a) categorically

involves ‘sexual abuse of a minor’ under 8 U.S.C.

§ 1101(a)(43)(A).” United States v. Farmer, 627 F.3d 416,

420 (9th Cir. 2010) (citing United States v. Baron-Medina,

187 F.3d 1144, 1147 (9th Cir. 1999)); see also United States

v. Castro, 607 F.3d 566, 568 (9th Cir. 2010) (explaining that

“a conviction under section 288(a) categorically constitutes

‘sexual abuse of a minor’”); United States v. Medina-Villa,

567 F.3d 507, 512–16 (9th Cir. 2009) (same); United States

v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003) (same).

To overcome this precedent, Flores would need to

identify “intervening higher authority” that is “clearly

irreconcilable” with it. Miller v. Gammie, 335 F.3d 889, 893

(9th Cir. 2003) (en banc). He has not done so. Flores relies

primarily on recent Ninth Circuit cases—e.g., Menendez v.

Whitaker, 908 F.3d 467 (9th Cir. 2018); United States v.

Gomez, 757 F.3d 885 (9th Cir. 2014); Rivera-Cuartas v.

Holder, 605 F.3d 699 (9th Cir. 2010)—but those cases

addressed different federal offenses or different state statutes

14 FLORES V. BARR

(or both). In any event, none constitutes “intervening higher

authority.” Miller, 335 F.3d at 893 (emphasis added).3

Because Flores was convicted of an aggravated felony

with a sentence of more than five years, he is statutorily

ineligible for asylum and withholding of removal under the

INA and the CAT. The BIA therefore did not abuse its

discretion in determining that Flores failed to show prejudice

on those grounds for relief, which were not “plausibly”

available to him. See Granados-Oseguera v. Mukasey, 546

F.3d 1011, 1016 (9th Cir. 2008) (per curiam).

B

The BIA also concluded that Flores failed to show

prejudice from his former attorney’s ineffective assistance

with respect to “deferral of removal” under the CAT, 8 C.F.R.

§ 1208.17(a). The BIA abused its discretion in reaching that

conclusion.

Unlike withholding of removal, deferral of removal is

available even if the alien has been convicted of an

aggravated felony. See Lopez-Cardona v. Holder, 662 F.3d

1110, 1113–14 (9th Cir. 2011) (citing 8 C.F.R.

§ 1208.16(c)(4)). Under the regulations, “an applicant for

deferral of removal must demonstrate that it is more likely

than not that he or she will be tortured if removed” to the

3

Flores also makes passing references to Johnson v. United States,

135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018),

but he does not explain how those cases affect our precedent concerning

sexual abuse of a minor. He does not argue that the term “sexual abuse of

a minor” is unconstitutionally vague, which is the only issue to which

Johnson and Dimaya could speak. We accordingly express no opinion on

that issue.

FLORES V. BARR 15

proposed country of removal. Maldonado v. Lynch, 786 F.3d

1155, 1164 (9th Cir. 2015) (en banc); see 8 C.F.R.

§ 1208.16(c)(2), (3). “[T]orture” is defined “as ‘any act by

which severe pain or suffering, whether physical or mental,

is intentionally inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person

acting in an official capacity.’” Maldonado, 786 F.3d at 1162

(internal alteration omitted) (quoting 8 C.F.R.

§ 1208.18(a)(1)). Here, the BIA applied this standard in the

first instance and determined that the evidence submitted in

connection with Flores’s motion to reopen did not “show that

torture is more likely than not” if he were removed to Mexico

or that he faced “a clear probability” of acquiescence in any

such torture by a public official.

The BIA applied the wrong standard at this stage of the

proceedings. Although the more-likely-than-not standard

governs the merits of a CAT claim, see id. at 1164, in the

context of a motion to reopen for ineffective assistance, the

petitioner “need not show that [he] ‘would win or lose on any

claims.’” Maravilla Maravilla, 381 F.3d at 858 (quoting Lin

v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004)). Indeed, the

petitioner is not even required to “explain exactly what

evidence [he] would have presented in support of [those

claims].” Morales Apolinar, 514 F.3d at 898 (quoting

Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002)).

Rather, the question with respect to prejudice is whether

counsel’s deficient performance “may have affected the

outcome of the proceedings,” which means that the petitioner

“need only show ‘plausible grounds for relief.’” Id. (citations

omitted). If the petitioner makes that threshold showing, he

should be given an opportunity to prove his claims, this time

with the assistance of competent counsel. Any other rule

would force a petitioner to supply all of the evidence

16 FLORES V. BARR

supporting his claims in his motion to reopen. Such a

requirement would not only preclude the petitioner from

presenting oral testimony, but it would also hinder the

agency’s assessment of credibility, which is often a critical

issue with respect to many forms of relief from removal. It

is thus unrealistic to expect a petitioner to adequately present

his entire case in a written motion to the BIA; if the

petitioner’s claim is plausible, he should have the

“opportunity to present [his] case before the IJ.” Id. at 899.

We have accordingly held that the BIA abuses its discretion

when it “directly adjudge[s] the question of whether

petitioners would win or lose their claim,” thereby applying

a standard “higher than the standard required” to show

prejudice. Maravilla Maravilla, 381 F.3d at 858–59. And

that is precisely what the BIA did in this case.

Because the BIA analyzed Flores’s “new prejudice

evidence under standards more stringent than were proper,”

we grant the petition and remand to the BIA so that it may

“consider [the evidence] under the correct standard” for

prejudice. Id. at 859; see Lopez v. Ashcroft, 366 F.3d 799,

806–07 (9th Cir. 2004) (discussing INS v. Orlando Ventura,

537 U.S. 12, 16–18 (2002) (per curiam)).

C

The BIA made the same error with respect to Flores’s

claim for relief under former § 212(c). According to the BIA,

“[e]ven with the additional evidence of hardship to his mother

and to himself which he presents, we conclude that the result

in the case would not change.” The BIA again abused its

discretion by improperly ruling on the merits of the new

§ 212(c) evidence in the context of determining prejudice.

Remand is therefore appropriate on this claim as well. See

FLORES V. BARR 17

Maravilla Maravilla, 381 F.3d at 858–59 (remanding where

the BIA concluded that the “petitioners failed to show ‘the

outcome would have been different’”).

D

Flores raises several additional claims of prejudice, all of

which the BIA rejected. The BIA did not abuse its discretion

in doing so.

First, Flores argues that he suffered prejudice as a result

of his attorney’s failure to tell some of his family members

about the nature of his § 288(a) conviction, contending that

the IJ relied on this failure “as a factor weighing against the

exercise of discretion in [his] favor.” The IJ, however,

referenced Flores’s failure to share the nature of his

conviction with his family members, not his attorney’s. And

Flores’s failure to disclose this information to his family

members is obviously relevant to determining whether they

could, as the IJ noted, “form an opinion on [Flores’s] good

character.” The IJ’s reference to Flores’s omission certainly

does not demonstrate a due process violation attributable to

Flores’s attorney. Cf. Almaghzar v. Gonzales, 457 F.3d 915,

922 (9th Cir. 2006) (finding no due process violation where

an IJ “expressed skepticism about how [a witness’s]

testimony could provide insight” on an applicant’s credibility

when the witness “did not know of [the applicant’s]

conviction”).4

4

Relatedly, Flores contends that the IJ violated his due process rights

by engaging in “aggressive cross-examination” of his half-brother and

older daughter that went “outside the scope of questions pursued by the

DHS’s attorney.” But “the due process clause does not prevent an IJ from

examining a witness,” even in an “aggressive[]” and “harsh manner and

18 FLORES V. BARR

Second, Flores asserts that he suffered prejudice as a

result of his prior counsel’s failure to respond to the

government’s motion to dismiss in this court. “Prejudice is

ordinarily presumed in immigration proceedings when

counsel’s error ‘deprives the alien of the appellate proceeding

entirely,’” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th

Cir. 2003) (citation omitted), such as counsel’s “failure to file

a necessary document,” Hernandez-Mendoza v. Gonzales,

537 F.3d 976, 979 (9th Cir. 2007) (mem.). But the only issue

raised in Flores’s previous petition for review was the BIA’s

denial of his § 212(c) application, and that petition was

dismissed for lack of jurisdiction. Flores does not identify

any “arguments [that] might have been successful” in

responding to the government’s motion to dismiss on

jurisdictional grounds, which necessarily leads us to conclude

that “there was no prejudice from the ineffective assistance of

counsel” in this regard. Rojas-Garcia, 339 F.3d at 826.

Third, Flores suggests that he suffered prejudice as a

result of his prior counsel’s failure to recognize his eligibility

for a U visa, which he contends “would have been granted.”

But neither the BIA nor IJs have authority over U visa

petitions; that authority rests solely with United States

Citizenship and Immigration Services. See Lee v. Holder,

599 F.3d 973, 975–76 (9th Cir. 2010) (per curiam) (citing

8 C.F.R. § 214.14(c)(1)). Flores has not articulated how the

lack of a visa caused any prejudice in his immigration

proceedings before the IJ or BIA.

tone.” Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003)

(quoting Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998)).

FLORES V. BARR 19

IV

We grant the petition for review with respect to Flores’s

claims for deferral of removal under the CAT and relief under

former § 212(c), deny the petition for review with respect to

all other claims, and remand for further proceedings

consistent with this opinion. The parties shall bear their own

costs.

GRANTED IN PART, DENIED IN PART, AND

REMANDED.