Sergio Calderon-Rosas v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

19-2332

________________

SERGIO CALDERON-ROSAS,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

________________

On Appeal from the Board of Immigration Appeals

(Agency No. A215-589-441)

Immigration Judge: Kuyomars Q. Golparvar

________________

Argued January 23, 2020

Before: GREENAWAY, JR., KRAUSE, and RESTREPO,

Circuit Judges

(Opinion filed: April 27, 2020)

Petra D. Fist [ARGUED]

P & D Solutions

1209 Kirkwood Highway

Wilmington, DE 19805

Counsel for Petitioner

Christin M. Whitacre [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

________________________

OPINION OF THE COURT

________________________

KRAUSE, Circuit Judge.

Immigration law is a field in which fair, accurate fact-

finding is of critical importance. The need in immigration

proceedings for effective attorneys who can competently

marshal the evidence on each side is therefore of

commensurate importance. Yet aliens—often poor, often non-

English speaking—are disproportionately saddled with low-

quality counsel, and the consequences can be drastic. This is a

case in point. Petitioner Sergio Calderon-Rosas paid a now-

disbarred attorney to represent him in removal proceedings,

and Calderon-Rosas was ordered deported after that attorney

failed to present key evidence supporting his application for

cancellation of removal. Calderon-Rosas sought a new

hearing, arguing that he was deprived of due process by, among

other things, his attorney’s ineffective assistance, but the Board

2

of Immigration Appeals (BIA) denied his claims. We must

decide whether we have jurisdiction to review due process

claims where a petitioner, like Calderon-Rosas, seeks only

discretionary relief—and if so, whether Calderon-Rosas’s

claims have merit. Because we conclude that we have

jurisdiction and Calderon-Rosas plainly presents a meritorious

ineffective-assistance claim, we will vacate the Board’s

decision and remand.

I. FACTUAL BACKGROUND 1

Calderon-Rosas, a Mexican national, initially entered

the United States in 2001. He has lived in the United States

since 2001. Though he and his wife lack lawful immigration

status, their three children are U.S. citizens. Before he was

detained, Calderon-Rosas had been a reliable and well-liked

contractor in the Norristown, Pennsylvania, area for eleven

years. His neighbors consider him “pleasant and sociable” and

his children “well dressed and polite.” JA 379. At least until

their father’s detention by immigration authorities, the children

were successful students at the local public schools, and the

whole family was baptized in the Saint Patrick Church of

Norristown, Pennsylvania, whose pastor considers them

“hardworking, honest and compassionate.” JA 370.

Yet in 2018, Calderon-Rosas was charged with a DUI—

and while those charges were later dismissed, the Government

nonetheless initiated removal proceedings. Desirous of

remaining in this country, Calderon-Rosas hired attorney

1

The facts here are drawn from the transcript of the

removal hearing, the agency’s decisions, and evidentiary

attachments to Calderon-Rosas’s administrative filings.

3

Douglas Grannan to represent him, and Grannan represented

Calderon-Rosas at his removal hearing before an Immigration

Judge (IJ). Grannan, however, was ill suited to the task: He

would soon be disbarred for “multiple violations of the Rules

of Professional Conduct in seven separate client matters”

amounting to a “troubling pattern of neglect.” Office of

Disciplinary Counsel v. Grannan, No. 197 DB 2016, slip op.

at 83 (Pa. Sup. Ct. Disciplinary Bd. Apr. 3, 2019), report and

recommendation adopted per curiam, No. 2597 Disciplinary

Docket No. 3 (Pa. July 9, 2019) (suspending Grannan); Office

of Disciplinary Counsel v. Grannan, No. 177 DB 2019, slip op.

at 1 (Pa. Sup. Ct. Disciplinary Bd. Oct. 18, 2019), report and

recommendation adopted per curiam, No. 2660 Disciplinary

Docket No. 3 (Pa. Oct. 18, 2019) (disbarring Grannan). The

hallmarks of Grannan’s “pattern of neglect” were a lack of

client communication, a failure to submit appropriate

documents, and a wanton disregard for his client’s prospects of

obtaining relief. See, e.g., id. at 83, 85–93.

Grannan’s representation of Calderon-Rosas was as

poor as his record would predict. Calderon-Rosas sought to

present claims for asylum, pursuant to 8 U.S.C. § 1158, and

cancellation of removal, pursuant to 8 U.S.C. § 1229b(b). Yet,

although Calderon-Rosas spent over $7000 on Grannan’s

services, Grannan never visited him in detention, never

discussed his case with him over the phone, and never helped

Calderon-Rosas understand the requirements for obtaining the

relief he sought. Worse, Grannan failed to meaningfully

pursue Calderon-Rosas’s asylum application despite telling

Calderon-Rosas that he would do so. And most troubling of

all, Grannan did not obtain adequate medical records of

Calderon-Rosas’s children to support Calderon-Rosas’s

cancellation of removal application.

4

Not surprisingly, given the record before him, the IJ

denied relief on all claims. As for asylum, the IJ deemed

Calderon-Rosas’s application abandoned, so the hearing

proceeded only on Calderon-Rosas’s cancellation of removal

application. As for cancellation of removal, the IJ announced

at the outset of the hearing that he would focus on the eligibility

requirement that the petitioner demonstrate that a U.S. citizen

family member—in this case, Calderon-Rosas’s children—

would suffer “exceptional and extremely unusual hardship,” 8

U.S.C. § 1229b(b)(1)(D), if he were removed. In this respect,

Grannan argued that Calderon-Rosas’s oldest son had asthma,

but as the IJ readily noted, the documentation Grannan had

filed reflected that condition had been long under control such

that “overall [the children’s] health” appeared “good.” JA 21.

So while the IJ found that there “may even be extreme

hardships” to Calderon-Rosas’s children if he were deported—

among them a loss of childcare and a loss of family savings—

he found that their suffering would not meet the high threshold

of “exceptional and extremely unusual hardship” to qualify

Calderon-Rosas for cancellation. JA 21. Based on the

information then available to him, the IJ also held in the

alternative that he would have declined Calderon-Rosas’s

cancellation application as a matter of discretion.

After Calderon-Rosas’s claims were denied, he

obtained new counsel and filed with the BIA both a motion to

remand to the IJ based on his original attorney’s ineffective

assistance before the IJ, and an appeal based on procedural due

process violations alleged to have occurred during the IJ

hearing. In support of the motion to remand and as required by

regulation, 8 C.F.R. § 1003.2, Calderon-Rosas submitted new

evidence, including medical records for his three children,

5

which demonstrated that his older son suffered from PTSD and

a persistent and chronic adjustment disorder with symptoms of

depressed mood and anxiety; his daughter also suffered from

depression; and his younger son had “special needs” due to a

speech delay.

The BIA denied the motion to remand and dismissed

Calderon-Rosas’s appeal. As to the motion to remand, the BIA

explained only that it “conclude[d] that [Calderon-Rosas] ha[d]

not established that he was prejudiced by his prior counsel [sic]

alleged ineffectiveness” because he “ha[d] not established

what additional corroboration he would have submitted that

would have impacted the outcome of the case.” JA 8–9. At

the same time that it faulted him for failing to offer new

evidence of corroboration, however, the BIA stated that “[t]o

the extent that [Calderon-Rosas] seeks to submit new evidence

on appeal in the form of evidence regarding his ineffective

assistance of counsel claim . . . we are without authority to

consider new evidence offered for the first time on appeal.” JA

9. The BIA also found Calderon-Rosas’s appeal of the IJ’s

decision on procedural due process grounds meritless.

Calderon-Rosas timely petitioned for our review of

both the BIA’s denial of his motion to remand and its dismissal

of his appeal. He contends that the BIA abused its discretion

in denying his motion to remand on grounds of ineffective

assistance of counsel and that it erred in dismissing his

procedural due process claims.

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction over the motion to remand

under 8 C.F.R. § 1003.2(a), and we have jurisdiction to review

6

its denial under 8 U.S.C. § 1252(a). We review the denial of a

motion to remand for abuse of discretion, but “questions of

law, such as whether the BIA applied the correct legal standard

in considering the motion to [remand] and the underlying claim

of denial of due process, are . . . reviewed de novo.” Fadiga v.

Att’y Gen., 488 F.3d 142, 153–54 (3d Cir. 2007).

The BIA had jurisdiction over the appeal of the IJ’s

decision under 8 C.F.R. § 1003.1(b)(3), and we have

jurisdiction to review its dismissal under 8 U.S.C. § 1252(a).

We review its legal rulings de novo and its factual findings for

substantial evidence. Huang v. Att’y Gen., 620 F.3d 372, 379

(3d Cir. 2010).

III. DISCUSSION

Calderon-Rosas contends that he was denied due

process because he received ineffective assistance of counsel

in proceedings before the IJ and because the IJ disregarded

various procedural regulations. The Government opposes

Calderon-Rosas’s claims on the merits, but also, as a threshold

matter, challenges our jurisdiction, arguing that petitioners

seeking discretionary relief cannot assert procedural rights

under the Due Process Clause in this Court because they lack

a protected liberty or property interest in such relief. Below,

we first ascertain our jurisdiction 2 before addressing Calderon-

Rosas’s ineffective-assistance and procedural due process

claims.

2

We “always ha[ve] jurisdiction to determine [our]

jurisdiction.” Orie v. Dist. Att’y Allegheny Cty., 946 F.3d 187,

190 n.7 (3d Cir. 2019) (quoting Zambelli Fireworks Mfg. Co.

v. Wood, 592 F.3d 412, 418 (3d Cir. 2010)).

7

A. Jurisdiction

Before we address the merits of Calderon-Rosas’s

claims, we must address a threshold question: Do we have

jurisdiction over ineffective assistance of counsel or procedural

due process claims—both of which flow from the Fifth

Amendment’s Due Process Clause in the immigration context,

Fadiga, 488 F.3d at 155—made by a petitioner seeking

discretionary relief? The question arises because, in this

context, “[o]ur jurisdiction . . . is narrowly circumscribed in

that it is limited to colorable [constitutional] claims or

questions of law,” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d

Cir. 2010) (emphasis added) (internal quotation marks and

citation omitted); see also 8 U.S.C. § 1252(a)(2)(B), (D), and

the Government asserts that petitioners cannot state any

cognizable constitutional claim under the Due Process Clause

because they lack a protected interest in discretionary relief.

The government’s argument, however, is one we have

squarely rejected. We long ago recognized that due process

claims can be asserted by petitioners seeking discretionary

relief because “Congress instructed the Attorney General to

establish an asylum procedure,” and “[w]hen Congress directs

an agency to establish a procedure . . . it can be assumed that

Congress intends that procedure to be a fair one.” Marincas v.

Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum

claim). “[F]airness,” we explained, “mandate[s] that the

asylum procedure promulgated by the Attorney General

provide the most basic of due process.” Id.; see also Cham v.

Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough

Cham has no constitutional right to asylum, he was entitled, as

a matter of due process, to a full and fair hearing on his

application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74

8

(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that

counsel’s ineffectiveness was a denial of due process.

Accordingly, we may analyze the claim, at least within the

parameters of due process.”).

More recently, in Serrano-Alberto v. Attorney General,

859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over

claims for discretionary relief, we reiterated that “petitioners

must receive a full and fair hearing that allows them a

reasonable opportunity to present evidence on their behalf, and

a decision on the merits of their claim by a neutral and impartial

arbiter.” Id. at 213 (internal quotation marks and citations

omitted). That procedural due process right, we explained, is

comprised of “three key protections” in immigration

proceedings: “(1) ‘factfinding based on a record produced

before the decisionmaker and disclosed to him or her’; (2) the

opportunity to ‘make arguments on his or her own behalf’; and

(3) ‘an individualized determination of his [or her] interests.’”

Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003)

(en banc)). In short, “[t]hroughout all phases of deportation

proceedings, petitioners must be afforded due process of law.”

Id.

As our case law likewise establishes, ineffective

assistance of counsel claims are no less cognizable by

petitioners seeking discretionary relief. It is by now beyond

question that the Due Process Clause guarantees aliens the

right to effective assistance of counsel in removal proceedings.

Fadiga, 488 F.3d at 155; Matter of Lozada, 19 I. & N. Dec.

637, 638 (BIA 1988). And as with procedural due process

claims, we have never before discriminated among ineffective

assistance of counsel claims based on whether the petitioners

raising them sought discretionary or mandatory relief. See,

9

e.g., Filja v. Gonzales, 447 F.3d 241, 250, 256 (3d Cir. 2006)

(granting ineffective-assistance claim and remanding to the

BIA for consideration of petitioner’s claims for relief). That is

because, as the Second Circuit has explained, “[r]uling on an

ineffective assistance of counsel claim does not require us to

substitute our discretion for that of the agency; it is simply a

determination that the alien was not given a fair hearing

because of counsel’s errors.” Omar v. Mukasey, 517 F.3d 647,

650 (2d Cir. 2008) (per curiam).

Our recognition of due process claims by petitioners

seeking discretionary relief is consistent with bedrock

principles of Supreme Court case law. The Supreme Court has

explained that “the Fifth Amendment entitles aliens to due

process of law in deportation proceedings,” Reno v. Flores,

507 U.S. 292, 306 (1993), because “the Due Process Clause

applies to all ‘persons’ within the United States, including

aliens, whether their presence here is lawful, unlawful,

temporary, or permanent,” Zadvydas v. Davis, 533 U.S. 678,

693 (2001). Thus, “aliens who have once passed through our

gates, even illegally, may be expelled only after proceedings

conforming to traditional standards of fairness encompassed in

due process of law.” Shaughnessy v. United States ex rel.

Mezei, 345 U.S. 206, 212 (1953); see also Wong Yang Sung v.

McGrath, 339 U.S. 33, 50 (1950) (“When the Constitution

requires a hearing, it requires a fair one, one before a tribunal

which meets at least currently prevailing standards of

impartiality.”). Our longstanding recognition of the right to a

fundamentally fair hearing, Serrano-Alberto, 859 F.3d at 213,

simply echoes these propositions.

Surprisingly, however, our sister Circuits range the

gamut on whether this right extends to petitioners seeking

10

discretionary relief. 3 And relying on some of those out-of-

Circuit opinions, see, e.g., Rivera v. Sessions, 903 F.3d 147,

3

The Eighth and Eleventh Circuits either decline

jurisdiction over procedural due process and ineffective-

assistance claims for discretionary relief, or have decided that

such claims are not cognizable in connection with

discretionary relief proceedings. Pinos-Gonzalez v. Mukasey,

519 F.3d 436, 441 (8th Cir. 2008) (procedural due process);

Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir.

2008); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808–09 (8th

Cir. 2003) (ineffective assistance); Mejia Rodriguez v. Reno,

178 F.3d 1139, 1148 (11th Cir. 1999) (ineffective assistance).

The First and Fifth Circuits exercise jurisdiction over

ineffective-assistance claims, but have taken the same

approach as the Eighth and Eleventh Circuits on procedural

due process claims. Mejia v. Whitaker, 913 F.3d 482, 490 (5th

Cir. 2019) (due process); Diaz v. Sessions, 894 F.3d 222, 226–

27 (5th Cir. 2018) (ineffective assistance); Rivera v. Sessions,

903 F.3d 147, 151 (1st Cir. 2018) (due process); Hernandez v.

Reno, 238 F.3d 50, 55–56 (1st Cir. 2001) (ineffective

assistance). The Tenth Circuit exercises limited jurisdiction

over procedural due process claims, Salgado-Toribio v.

Holder, 713 F.3d 1267, 1271 (10th Cir. 2013), and has not

addressed ineffective-assistance claims. The Second Circuit

exercises jurisdiction over ineffective-assistance claims, Omar

v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008) (per curiam), and

has not addressed procedural due process claims. The Seventh

Circuit exercises jurisdiction over procedural due process

claims and the performance prong of ineffective-assistance

claims. Zambrano-Reyes v. Holder, 725 F.3d 744, 750–51 (7th

Cir. 2013) (ineffective assistance); Delgado v. Holder, 674

F.3d 759, 766 (7th Cir. 2012) (due process). The Ninth Circuit

11

151 (1st Cir. 2018), the Government argues that we lack

jurisdiction to review any procedural due process or ineffective

assistance of counsel claims made by aliens seeking

discretionary relief. The crux of its theory is that a “claim of

deprivation of due process requires that a cognizable liberty or

property interest be at stake,” and “discretionary forms of relief

do not rise to the level of such a protected interest.” Rivera,

903 F.3d at 150–51 (internal quotation marks and citations

omitted). The only cognizable liberty interest the Government

would recognize is in the specific procedures provided by

Congress, regardless of whether those procedures are

administered fairly and impartially.

For the reasons previously stated, this argument is

foreclosed by our case law. See Marincas, 92 F.3d at 203;

Serrano-Alberto, 859 F.3d at 213. But more fundamentally, it

conflates the existence of a statutory entitlement with the

fairness of the process by which a petitioner may be deprived

of it. As an initial matter, a “liberty interest may arise from . . .

an expectation or interest created by state laws or policies,”

Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and “a person’s

liberty is equally protected, even when the liberty itself is a

statutory creation of the State,” Wolff v. McDonnell, 418 U.S.

539, 558 (1974); Meachum v. Fano, 427 U.S. 215, 226 (1976).

But it is equally true that “[w]hen Congress directs an agency

to establish a procedure . . . it can be assumed that Congress

exercises jurisdiction over both procedural due process and

ineffective-assistance claims. Fernandez v. Gonzales, 439

F.3d 592, 602–03 (9th Cir. 2006) (ineffective assistance);

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

process).

12

intends that procedure to be a fair one.” Marincas, 92 F.3d at

203. 4

The Government’s position, moreover, would lead to

absurd results: At oral argument, for example, the

Government went so far as to posit that, so long as an alien

seeking only discretionary relief had the opportunity to

reasonably present evidence, he would have no cognizable due

process claim—and hence, no recourse to the federal courts—

even if the IJ denied that relief “based on the flip of a coin.”

Tr. 43. We think that conception of due process is not only

inconsistent with our case law but would be anathema to our

Founding Fathers. See Chehazeh v. Att’y Gen., 666 F.3d 118,

130 (3d Cir. 2012) (stating that “substantive liberty rights and

. . . due process rights” are both “areas that courts often are

called upon to protect”).

In sum, petitioners seeking discretionary relief are

entitled to fundamentally fair removal proceedings, which

constitutes a protected interest supporting a due process claim.

Because Calderon-Rosas’s due process claims are also

colorable on their merits, as discussed below, our review of

those claims is a proper exercise of jurisdiction.

4

Ironically, even adopting the Government’s

constrained view of the process that is due to petitioners

seeking discretionary relief, the ineffective assistance of

counsel claim asserted here would be cognizable. That is

because Congress has also provided a statutory right to

counsel, see 8 U.S.C. § 1229a(b)(4)(A); 8 C.F.R. § 1240.3,

and to present evidence, see 8 U.S.C. § 1229a(b)(4)(B).

13

B. Ineffective Assistance of Counsel

After the IJ denied relief, Calderon-Rosas moved to

remand his proceedings on grounds of ineffective assistance of

counsel. The BIA denied the motion, and he appealed. 5 He

contends that Grannan’s representation prevented him from

obtaining a fundamentally fair hearing on both his cancellation

of removal and asylum claims. We discuss each contention in

turn.

1. Cancellation of Removal

Calderon-Rosas’s motion to remand alleged that

Grannan’s failure to adduce sufficient evidence of his

children’s health conditions deprived him of a fundamentally

fair hearing on his cancellation of removal claim. The BIA

denied the motion. That decision was an abuse of discretion in

two respects: It misapplied the legal standard and it was wrong

on the merits.

First, the BIA misapplied the standard for assessing

whether Calderon-Rosas had demonstrated he was prejudiced

by Grannan’s performance. The BIA held that Calderon-Rosas

had not demonstrated that Grannan’s performance “impacted

the outcome of the [removal proceeding].” JA 9. But the

familiar standard for prejudice in an ineffective-assistance

claim is whether there is a “reasonable probability” that “the IJ

would not have entered an order of removal absent counsel’s

errors.” Fadiga, 488 F.3d at 159. That does not require a

5

Our jurisdiction under 8 U.S.C. § 1252 embraces

review of denials of motions to reopen. Guo v. Ashcroft, 386

F.3d 556, 560–61 (3d Cir. 2004).

14

petitioner to show counsel’s deficient performance did, in fact,

affect the outcome of the case, or even that a different outcome

was “more likely than not”; instead, we have cautioned,

“reasonable probability” means merely a “significant

possibility.” United States v. Payano, 930 F.3d 186, 193 n.5

(3d Cir. 2019). We have also admonished that in applying this

standard, while the BIA need not “write an exegesis on every

contention,” it must “consider the issues raised, and announce

its decision in terms sufficient to enable a reviewing court to

perceive that it has heard and thought and not merely reacted.”

Filja, 447 F.3d at 256 (internal quotation marks and citation

omitted).

Here, the BIA failed to do so, and its application of the

“reasonable probability” standard was erroneous. The entirety

of its explanation for denying Calderon-Rosas’s motion to

remand was as follows: “[T]he respondent has not established

what additional corroboration he would have submitted that

would have impacted the outcome of the case. Moreover, we

note that the Immigration Judge did not deny the respondent’s

application for cancellation of removal on the basis of a lack of

corroboration.” JA 9. As in Filja, “there is nothing in [this]

one paragraph devoted to the ineffective assistance of counsel

claim that is suggestive of [a sufficient] review or that [the

BIA] grasped [Calderon-Rosas’s] serious allegations

supporting his ineffective assistance claim.” 447 F.3d at 256.

Indeed, the BIA entirely failed to discuss the significance of

the hundred-plus pages of new evidence Calderon-Rosas

submitted. Instead, paradoxically, it simultaneously faulted

Calderon-Rosas for “not establish[ing] what additional

corroboration he would have submitted,” JA 9, despite clear

briefing and evidence to the contrary, and pronounced that it

was “without authority to consider new evidence offered for

15

the first time on appeal,” id., despite clearly applicable law to

the contrary, 8 C.F.R. § 1003.2(c)(1) (requiring submission of

new evidence to support motion to remand). To the extent the

BIA did take account of the new evidence that it both failed to

identify and incorrectly claimed it could not consider, it also

misapprehended its significance: Calderon-Rosas did not seek

to “corroborat[e]” the evidence he had submitted at the IJ

hearing, JA 9; instead, he sought to introduce wholly new

evidence of his children’s health conditions. In short, the

BIA’s woefully inadequate reasoning fell well short of

demonstrating that it “reviewed the record and grasped the

movant’s claims.” Filja, 447 F.3d at 256.

If the BIA had applied the correct legal standard to the

evidence set forth by Calderon-Rosas, it would have

concluded, as we do, that his motion to remand should have

been granted. 6 An alien seeking to reopen his immigration

proceedings based on ineffective assistance of counsel must

demonstrate that “competent counsel would have acted

otherwise” and that he was “prejudiced by counsel’s poor

performance.” 7 Fadiga, 488 F.3d at 157 (citations omitted).

6

We have no need to remand for the BIA to reconsider

its erroneous ruling. As in Fadiga, “it would be an act of

supererogation for this [C]ourt to ask the BIA to determine

whether [Grannan’s] representation fell below minimal

professional standards, thereby prejudicing [Calderon-

Rosas],” because the “full record of [Grannan’s] representation

is before us, and we are competent to assess what transpired.”

Fadiga, 488 F.3d at 162.

7

He must also meet certain procedural requirements set

forth by the BIA for ineffective-assistance claims, see Lozada,

16

Of Grannan’s incompetence there can be no doubt. We have

held that an attorney’s failure to produce easily available

evidence supporting a claim for immigration relief falls below

the constitutionally required standard of performance. See

Fadiga, 488 F.3d at 162. Such a failure to produce evidence

was precisely Grannan’s error in the present case: He failed to

adduce medical records that would have been easily obtainable

with proper notice to Calderon-Rosas’s family and that would

have supported Calderon-Rosas’s application for cancellation

of removal. Indeed, the Government does not even argue that

Grannan’s performance met the constitutional minimum.

Rather, the disputed question is whether Calderon-

Rosas was prejudiced by Grannan’s errors. Again, the answer

without question is yes. As we have explained, Calderon-

Rosas must show only a “reasonable probability” that his

cancellation of removal claim would have been granted had

Grannan submitted evidence of his children’s medical

hardships. Fadiga, 488 F.3d at 159. In determining whether

Calderon-Rosas was eligible for cancellation of removal, the IJ

expressly announced that he would focus his attention on the

question of whether “exceptional and extremely unusual

hardship” would result for Calderon-Rosas’s U.S. citizen

children if he were removed. JA 253. And the seminal case

construing that standard explains that a “strong” case of such

hardship is presented by an alien with “a qualifying child with

very serious health issues.” In re Monreal-Aguinaga, 23 I. &

N. Dec. 56, 63 (BIA 2001). Yet the only medical evidence

Grannan submitted related to a mild asthmatic condition in

Calderon-Rosas’s older son that was “under control,” which

19 I. & N. Dec. at 639, but the Government does not dispute

that Calderon-Rosas satisfied those requirements here.

17

led the IJ to conclude that the children’s health was generally

“good,” JA 21. Grannan failed to adduce evidence that

Calderon-Rosas’s older son suffered from PTSD and a

persistent and chronic adjustment disorder with symptoms of

depressed mood and anxiety; that his daughter also suffered

from depression; and that his younger son suffered from a

speech delay.

Constitutionally adequate counsel would have

introduced this evidence and, given the relevant precedent and

the IJ’s focus on hardship to Calderon-Rosas’s children and on

their “good” health, there is a reasonable probability the IJ

would have granted cancellation. Calderon-Rosas is therefore

entitled to a new hearing on his cancellation application. 8

2. Asylum

Calderon-Rosas also contends that Grannan’s

ineffective assistance entitles him to a new hearing on his

asylum claim. In support of this contention, he points to

Grannan’s failure to file a facially adequate asylum application

and the IJ’s consequent ruling that the application was

abandoned. While surely deficient performance on Grannan’s

8

Though the IJ also held in the alternative that he would

have denied Calderon-Rosas’s application as a matter of

discretion, his attention to Calderon-Rosas’s children’s

hardship, particularly with respect to their health, suggests a

reasonable probability that he would not have reached the same

conclusion had the medical evidence been introduced. Thus,

even if the Government had asked us to affirm on this basis,

which it did not, we could not do so.

18

part, we are not persuaded that counsel’s error prejudiced

Calderon-Rosas.

A successful asylum applicant must demonstrate that he

has a “well-founded fear of future persecution . . . motivated

by a statutorily protected ground, namely the alien’s race,

religion, nationality, political opinion, or membership in a

particular social group.” Huang v. Att’y Gen., 620 F.3d 372,

380 (3d Cir. 2010). Here, however, evidence in the record does

not suggest that Calderon-Rosas can make that showing.

Indeed, Calderon-Rosas has not seriously attempted to

substantiate his asylum claim, relying instead on the

unsupported proposition that the prejudice requirement in

ineffective-assistance cases can be waived in particularly

egregious circumstances.

The closest support we can find for this proposition is a

Ninth Circuit rule that an attorney’s “failure to file a necessary

document creates a presumption of prejudice” which is

rebutted where “the petitioner lacks plausible grounds for

relief.” Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 979

(9th Cir. 2007) (internal quotation marks and citation omitted).

We have not adopted that presumption, and we need not do so

today: Even if it did apply, it would be rebutted here; the

entirety of Calderon-Rosas’s asylum evidence consists of an

affidavit from his wife stating that she was sexually assaulted

in Mexico many years ago and fears returning. That

circumstance, while no doubt traumatic, pertains to Calderon-

Rosas’s wife’s fear of persecution, not his own, and does not

establish membership in a cognizable “particular social

group.” Calderon-Rosas therefore is not entitled to a new

asylum hearing due to ineffective assistance of counsel.

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C. Procedural Due Process

Calderon-Rosas also alleges that six other due process

violations occurred at his IJ hearing. Four of these claims,

however, were not exhausted to the BIA as required for us to

review them. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d

Cir. 2005).

That leaves two exhausted procedural due process

claims: the admission of Calderon-Rosas’s inaccurate tax

returns as evidence and the lack of an interpreter in the first

part of his hearing. Neither, however, rendered the

proceedings fundamentally unfair. See Serrano-Alberto, 859

F.3d at 213. Even granting Calderon-Rosas’s contention that

Grannan’s poor planning and communication led him to hastily

prepare and submit mistake-ridden tax returns into evidence,

no prejudice resulted because the IJ did not consider them a

negative factor. And while the IJ should have involved an

interpreter from the outset of the hearing, this error did not

render the proceedings fundamentally unfair. Indeed, at oral

argument, Calderon-Rosas’s counsel was unable to identify

any portion of the hearing transcript that suggested Calderon-

Rosas was prejudiced by the interpreter’s initial absence. In

the absence of prejudice, Calderon-Rosas was not deprived of

due process by the alleged errors. 9

9

We do not find the presumption of prejudice

articulated in Leslie v. Att’y Gen., 611 F.3d 171, 178 (3d Cir.

2010) applicable to either of Calderon-Rosas’s due process

arguments as presented. Because, as Calderon-Rosas

acknowledges, an interpreter was present for all but the

introductory portion of the IJ hearing in this case, we need not

decide whether the absence of an interpreter for the entirety or

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IV. CONCLUSION

For the foregoing reasons, we will reverse the BIA’s

denial of Calderon-Rosas’s motion to remand and remand for

a new hearing on his application for cancellation of removal,

and we will affirm the BIA’s dismissal of Calderon-Rosas’s

asylum claim.

even the substantive portion of a petitioner’s hearing would

trigger Leslie’s presumption.

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