Jesus HERNANDEZ LUCENA; et al., Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent, 215 F. App'x 627

MEMORANDUM Jesus Hernandez Lucena and Santa Delia Partida Flores (together, “Petitioners”) petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) denial of their motion to reopen in absentia removal proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review and remand for further proceedings. The BIA may rescind an in absentia removal order if, within 180 days, the alien files a motion to reopen demonstrating exceptional circumstances that could excuse the alien’s failure to appear. 8 U.S.C. § 1229a(b)(5)(C)(i).

Exceptional circumstances include circumstances beyond the control of the alien, such as serious illness or death of an immediate relative. 8 U.S.C. § 1229a(e)(1). Ineffective assistance of counsel (“IAC”) may also be an exceptional circumstance warranting rescission of an in absentia removal order. Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir.2004). Here, Petitioners argue that, in failing to attend the February 3, 2003 hearing, because they relied on the fraudulent representation and advice of their non-attorney immigration consultant, Estela Rodriguez they did not attend the February 3, 2003 hearing.

To succeed in a motion to reopen on the basis of IAC, the alien must substantially comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). Unlike other contexts in which an alien raises IAC in removal proceedings, the BIA, “does not require a showing of prejudice to obtain relief from an in absentia order.” In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n. 1 (BIA 1996); see also Lo v. Ashcroft, 341 F.3d 934, 939 (9th Cir.2003).

In certain circumstances, ineffective assistance of a non-attorney immigration consultant can form the basis of equitable relief in the context of removal proceedings. We have held repeatedly that an immigration consultant’s deficient performance may equitably toll the deadline to file a motion to reopen removal proceedings. See, e.g., Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099 (9th Cir. 2005); Varela, 204 F.3d at 1240; Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.1999).

We have also held that ineffective assistance of a non-attorney immigration consultant can form the basis for equitable tolling of the numerical limit on motions to reopen imposed by 8 C.F.R. § 1003.2(c). See Fajardo v. INS, 300 F.3d 1018, 1019 (9th Cir.2002); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002). In light of these cases, that Rodriguez did not hold herself out as an attorney does not categorically preclude Petitioners from basing their motion to reopen on Rodriguez’s ineffective assistance. The BIA’s conclusion to the contrary was legal error.

The BIA, however, did not dismiss Petitioners’ appeal on the basis of its erroneous legal conclusion. Rather, it also adopted the decision of the IJ, including “agreeing] with the [IJ] that the [Petitioners were] properly notified of the hearing, and therefore had an obligation to be present.” We therefore review whether the BIA abused its discretion in denying the motion to reopen on the merits. See Katana v. INS, 232 F.3d 1107, 1112 (9th Cir. 2000).

The Government argues that we should not apply the holdings in the above cases to Petitioners’ motion to reopen because these cases are limited to circumstances in which the alien sought equitable tolling, a claim not relevant here. The Government’s argument, however, is unavailing.

The principle underlying equitable tolling, that fraudulent action “by an individual purporting to provide legal representation” should be remedied in equity, applies with equal force in the context of considering whether such fraud has rendered the administrative proceeding “so fundamentally unfair that an alien was prevented from reasonably presenting his case.” Rodriguez-Lariz, 282 F.3d at 1226 (internal quotation marks omitted); see also Fajardo, 300 F.3d at 1021-22; Varela, 204 F.3d at 1240. The same equitable principle guiding these cases applies to our review of the instant petition.

Two cases frame our analysis. In Singh-Bhathal v. INS, the INS ordered Singh deported in absentia after he failed to appear at a deportation hearing. 170 F.3d 943, 945 (9th Cir.1999). Singh appealed the BIA’s order affirming the IJ’s grant of an INS motion to reconsider the decision of a prior IJ to rescind the in absentia deportation order. Id. Singh did not attend the deportation hearing “[p]ursuant to advice he received from a private immigration consultant.” Id. at 944.

In his petition for review, he argued that the in absentia deportation order deprived him of a fair hearing because “the advice given him by the immigration consultant not to appear at the hearing constitutes an exceptional circumstance.” Id. at 946. We held that “[although Singh may have received poor advice, this does not alter the fact that he failed to appear at his hearing ... because he took the word of the consultant over that of the INS.” Id. at 947. We reached a different result in Fajardo.

There, the INS similarly ordered Fajardo deported in absentia after she failed to appear at a deportation hearing. 300 F.3d at 1019. Fajardo petitioned for review of the BIA’s order affirming the denial of her motion to reopen the in absentia deportation order. Id. at 1019. Fajardo alleged that she did not attend the deportation hearing because her “immigration paralegal,” Serra, did not inform her about her need to appear, despite her periodic inquiry into the status of her application for political asylum. Id. at 1018-19.

Serra advised and assisted Fajardo on her asylum application for at least five years, id., after which Fajardo paid Levin, a second non-attorney consultant, to handle her appeal to the BIA. Id. Levin failed timely to file the appeal, and the BIA denied it as untimely. Id.

In granting Fajardo’s petition for review — which she filed with new counsel— we held the circumstances warranted equitable tolling of the numerical limitation on motions to reopen, concluding that “[t]he IJ’s categorical refusal to consider the actions of Serra and Levin as a basis for reopening Fajardo’s proceedings solely because they were not attorneys ... is ... clearly erroneous.” Id. at 1022. We remanded Fajardo’s motion to reopen to determine “whether Serra’s failure to inform Fajardo of her need to attend her deportation hearing constitutes ‘exceptional circumstances’ excusing her failure to appear.” Id.

In so doing, we noted: “It is difficult to imagine how Serra’s failure to inform Fajardo of her need to appear at her deportation hearing would not constitute an exceptional circumstance excusing her absence.” Id. at 1022 n. 8. Our analysis of whether the instant petition is analogous to Singh-Bhathal, where the petitioner’s reliance on the immigration consultant’s advice did not justify his failure to appear, or Fajardo, where we strongly suggested that it would have, turns on the factual circumstances of each case. See Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000).

In Singh-Bhathal, there was no allegation of fraud. The factual recitation does not disclose whether Singh had established an ongoing relationship with the consultant or whether he merely obtained the erroneous advice after a one-time consultation with the non-attorney. In contrast, as detailed in Fajardo, Fajardo had relied on Serra for over five years and, even after Fajardo confronted him about his error, he attempted to mask his mistake in the subsequent motion he filed on Fajardo’s behalf. See 300 F.3d at 1019.

Although at first blush Singhr-Bhathal may appear to govern this case, the facts here are more analogous to those in Fajardo. Here, for over three years, Petitioners relied on their non-attorney immigration consultant Rodriguez’s representations that she could obtain both work permits and legal resident status for them and they paid her substantial sums for this legal assistance.

Instead, unbeknownst to Petitioners, Rodriguez filed petitions for political asylum on their behalf for the deceptive purpose of “getting [their] cases into court.” As stated in their declaration, when Petitioners later confronted Rodriguez about the inadequate applications for cancellation of removal that she subsequently prepared for them, Rodriguez informed Petitioners that she would prepare new applications in time for the next hearing, and referred Petitioners to Valinoti, the immigration attorney that “worked with her” and “could make sure that [their] cases were properly resolved.” It is in this context that Petitioners relied on Rodriguez’s subsequent advice when she informed them that they should not attend the February 3 hearing.

Rodriguez’s misrepresentations, like that of Serra and Levin, “implicitly resound in fraud.” 300 F.3d at 1021. Moreover, shortly after Rodriguez referred Petitioners to her colleague Valinoti, the State Bar Court recommended that he be suspended from practice for five years for helping non-attorney immigration consultants to practice law without a license and other violations of state and federal rules of professional responsibility relating to his representation of clients in immigration proceedings.

Although the record does not reflect that Rodriguez ever informed Petitioners of these charges or whether she, herself, as someone who worked with Valinoti, was implicated in them, Rodriguez’s apparent association with Valinoti provides contextual background for understanding Petitioners’ claims that Rodriguez’s actions constituted fraud. The attempts of Petitioners’ present counsel to confront Rodriguez with Petitioners’ own complaint were met with silence so the record does not contain a response from Rodriguez.

We also conclude that the BIA abused its discretion in finding that Petitioners failed to comply with Lozada. That Petitioners provided documentation about both Rodriguez and Valinoti demonstrates substantial compliance with the Lozada requirements. See, e.g., Rodriguez-Lariz, 282 F.3d at 1227 (holding that Petitioners had substantially complied with Lozada by submitting documents regarding a consultant and two attorneys). We conclude, in light of the factual record, that the BIA abused its discretion by denying Petitioners’ motion to reopen the in absentia removal order.

See Maravilla Maravilla, 381 F.3d at 857-59. We therefore grant the petition for review and remand to the BIA with directions to remand to the IJ for consideration of Petitioners’ applications for cancellation of removal. PETITION GRANTED; REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3. . We review for abuse of discretion the denial of a motion to reopen deportation proceedings. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004). We review de novo issues of law. Varela v.

INS, 204 F.3d 1237, 1239 (9th Cir.2000). We review for substantial evidence the IJ’s factual determinations. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). “Where factual assertions in affidavits supporting a motion to reopen are specific and not conclusory ... the BIA must accept their truth unless they are inherently incredible.” Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985). . We note that in one significant respect the factual basis of the IJ’s denial of the motion is not supported by evidence in the record.

The IJ referred to Valinoti as Petitioners' “prior counsel” and concluded that their motion "does not demonstrate that [Petitioners] were ineffectively assisted by the attorney authorized to represent them or otherwise face exceptional circumstances that would merit reopening their removal proceedings.” Nothing in the administrative record indicates that Petitioners ever retained Valinoti. Rather, the record reflects that when Rodriguez first met with Petitioners, she represented that she could adjust Petitioners’ immigration status and perform other legal services.

When the IJ instructed Petitioners to supplement their application for cancellation of removal, Rodriguez assured Petitioners that she would prepare the supplemental materials for them and told Petitioners that she "worked with” attorney Valinoti who would "make sure [their] cases were properly resolved." . Rodriguez did not possess the necessary accreditation to file an asylum application on Petitioners’ behalf.

See 8 C.F.R. § 292.1 (authorizing representation in immigration proceedings only by attorneys; law students and recent graduates not admitted to the bar working under appropriate supervision; reputable individuals who provide representation without compensation; representatives of accredited organizations; accredited officials; certain attorneys outside the United States; and amicus curiae). . See In re Valinoti, 2002 WL 31907316 (Cal. State Bar Ct. Dec. 31, 2002).

The decision notes that during the charging period (from mid-1995 to late 1997), Valinoti and his law office handled over 2,720 immigration cases. 2002 WL 31907316, at *2.

The state bar court concluded that Valinoti had "intentionally and recklessly failed to competently perform legal services .... resulting] in substantial harm to many of his clients.... [Valinoti] aided and abetted immigration service providers (1) in representing aliens in immigration cases in violation of federal law and (2) in engaging in the unauthorized practice of law in this state____[H]e continues to ... seek[ ] relief for his clients based on what could be fraudulent applications for relief.” Id. at ®60-*61.

The decision also describes the common practice whereby non-attorney immigration service providers would "hold themselves out as immigration law experts” and “notarios," which has a special connotation in Central and South America, id. at *5; file fraudulent asylum applications, id. at *7-*8; and then refer their clients to Valinoti shortly before (or even on the same day as) their initial hearings, id. at *8-* 9. At that point Valinoti would typically recommend that the client withdraw the asylum application and request voluntary departure or suspension of deportation. Id. at *9.

The decision also censures Valinoti for "relying on or permitting nonattorney immigration services providers to prepare and file applications," in violation of state and federal regulations restricting the representation of clients in immigration proceedings to licensed attorneys and other statutorily qualified individuals. Id. at *11-*12.