Mariano GRANADOS-OSEGUERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 464 F.3d 993

BETTY B. FLETCHER, Circuit Judge: I. Mariano Granados-Oseguera petitions for review of the Board of Immigration Appeals’ (BIA’

s) affirmance of an Immigration Judge’s (IJ’

s) denial of cancellation of removal as well as the BIA’s denial of his motion to reopen proceedings to allow him to apply for adjustment of status. We deny Granados-Oseguera’s petition as to his equal protection claim based on a claim of disparate treatment of different classes of aliens; it does not violate Petitioner’s equal protection rights to treat aliens permitted voluntarily to depart differently from aliens not eligible for voluntary departure with respect to the amount of time in which they may file a motion to reopen proceedings. de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir.2004).

We grant Granados-Oseguera’s petition as to the BIA’s denial of his motion to reopen proceedings and as to his ineffective assistance of counsel (IAC) claim — the two are related. In the limited situation where an alien is represented by the same allegedly incompetent counsel throughout agency proceedings including through the filing of his motion to reopen proceedings before the BIA and therefore cannot administratively exhaust a claim for ineffective assistance of counsel, we have jurisdiction to review the denial of the motion to reopen.

We will review to determine whether the denial of effective counsel rises to the level of a due process violation and was prejudicial.

Here, Petitioner’s counsel failed to file a petition for review or a motion to reopen proceedings within the 30-day voluntary departure period; counsel knew or should have known that Petitioner would be barred from relief if he failed timely to file the petition or motion; these failings occurred despite the fact that counsel received several warnings and notices from the IJ as to the consequences of Petitioner failing to depart within that 30-day period; further, these failures occurred despite clear case law holding that motions to reopen filed after the voluntary departure period had expired would be denied as untimely and tardy petitions for review would be dismissed by this court.

Ray v. Gonzales, 439 F.3d 582, 586-89(9th Cir.2006); Shaar v. INS, 141 F.3d 953, 956 (9th Cir.1998). Accordingly, we remand for the BIA to reconsider the motion to reopen in light of Petitioner’s ineffective assistance of counsel allegations, which it has not yet had an opportunity to consider. II. Mariano Granados-Oseguera is a citizen of Mexico. He entered the United States without inspection as a sixteen-year old around June 6, 1984. He is married and has two United States citizen children, ages seventeen and six. On August 16, 1993, Granados-Oseguera filed an application for asylum.

That application was referred to the Immigration Court on September 24, 1997, following an interview with an INS officer. The INS issued a notice to appear the following day, charging that Granados-Oseguera was subject to removal under

section 212(a)(6)(A)(

i) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), for having entered the United States without having been admitted or paroled. Petitioner appeared with counsel before an Immigration Judge on April 29, 1998, conceded removability, and applied for cancellation of removal. He appeared again before the IJ on August 10, 1999. At this hearing, his counsel sought an extension because she had lost Petitioner’s case file; apparently, counsel’s secretary had left, taking three case files with her.

The IJ questioned Granados-Oseguera about his interactions with his counsel leading up to his hearing, and it became clear that Grana-dos-Oseguera had spoken only with his counsel’s secretary, never with counsel. The IJ continued Granados-Oseguera’s hearing until January 23, 2001, permitting counsel to file an application for cancellation of removal. Following the January 23, 2001 hearing, the IJ found that Granados-Oseguera satisfied two of the requirements for cancellation of removal: 10-years continuous physical presence in the United States and good moral character.

However, the IJ found that Granados-Oseguera had not shown that his qualifying relative, his U.S. citizen daughter, would face exceptional and extremely unusual hardship if he were removed from the United States. On that basis, the IJ denied Granados-Oseguera’s application for cancellation of removal, granting him thirty days in which voluntarily to depart. The IJ notified Petitioner’s counsel that if Petitioner failed to depart during his voluntary departure period, he would forfeit any opportunity to return to the United States for ten years.

On February 22, 2001, Granados-Osegu-era filed a timely notice of appeal of the IJ’s decision to the BIA. A few months later, on April 27, 2001, Granados-Osegu-era applied for a labor certification from the Department of Labor. The BIA summarily affirmed the IJ’s decision on September 6, 2002 and permitted Granados-Oseguera voluntary departure, setting his departure date for October 6, 2002. The BIA noted in its order that failure to depart during the 30-day period would undermine any chance for re-entry for ten years. Granados-Oseguera’s counsel failed to petition this court for review of the BIA’s

summary affirmance, making the IJ’s decision a final order of removal and finalizing Petitioner’s departure date for October 6, 2002. Caring for his sick daughter and father, Granados-Oseguera did not depart within his voluntary departure period. His counsel never sought an extension on his behalf to argue exceptional circumstances. Instead, Granados-Oseguera’s counsel filed a motion to reopen his removal proceedings a couple of months later, on December 6, 2002 so that Granados-Ose-guera could seek adjustment of status under 8 U.S.C. § 1255(

i) based on his application for labor certification. Granados-Oseguera’s counsel supplemented the December 6, 2002 motion with proof that the Department of Labor had approved Petitioner’s application for labor certification on December 12, 2002 and that Petitioner had filed a Form 1-140, Petition for Alien Worker, with the Immigration and Naturalization Service (INS).

In response to the government’s argument that Grana-dos-Oseguera was barred from filing a motion to reopen by his failure to depart voluntarily within his prescribed period, Granados-Oseguera’s counsel filed a reply brief explaining his failure to depart based on his father’s and daughter’s illnesses, claiming exceptional circumstances. However, counsel had failed to seek an extension of the voluntary departure period on this basis.

The BIA denied Petitioner’s motion to reopen proceedings on July 23, 2003, in part because the IJ and BIA had given Granados-Oseguera through his counsel “notice of the consequences of failure to depart.” Denial of Motion to Reopen (July 23, 2003). On August 22, 2003, Granados-Oseguera filed a pro se, timely petition for review from the BIA’s denial of his motion to reopen. Through this court’s Pro Bono Representation Project, Granados-Osegu-era was appointed counsel. We review the BIA’s decision for an abuse of discretion. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). III. A.

Petitioner’s Equal Protection Claim Granados-Oseguera argues that his equal protection rights have been violated because aliens who are not granted voluntary departure may employ the full 90-day period to file a motion to reopen, while aliens granted voluntary departure have only 30 to 60 days to file their motions to reopen. He contends that this disparate treatment constitutes an equal protection violation. We disagree. Although aliens are entitled to the benefits of the Equal Protection Clause, Perez-Oropeza v.

INS, 56 F.3d 43, 44(9th Cir.1995), Congress has broad authority over the “admission and expulsion of aliens.” Shaar v. INS, 141 F.3d 953, 958(9th Cir.1998) (citing Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977)). Interpreting this broad authority, we have held that a statute limiting relief available to certain classes of aliens must be “wholly irrational” to violate equal protection standards. de Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir.2004) (quoting Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-64 (9th Cir.2002)); Perez-Oropeza, 56 F.3d at 45.

Petitioner bears the “burden to negate ‘every conceivable basis which might support [a legislative classification] ... whether or not the basis has a foundation in the record.’ ” Id. (quoting Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)) (alteration in original). Granados-Oseguera cannot meet this burden since we have upheld the very distinction he challenges here. In de Martinez, we held that treating those aliens permitted voluntary departure differently, with respect to the window for filing a motion to reopen, from those not granted voluntary departure is not irrational.

We noted a potential legitimate purpose for these different deadlines: “it is less costly and more humane to allow responsible aliens to depart voluntarily without the stigma of being forcibly removed from the United States.” 374 F.3d at 764. In denying this claim, we simply apply binding circuit precedent. B. Petitioner’s Motion to Reopen Proceedings and Ineffective Assistance of Counsel Claim Petitioner raises his claim of ineffective assistance of counsel for the first time in his petition for review to this court.

Nonetheless, we conclude we may review it since it is his first opportunity to raise it, and the claim asserts a due process violation. Accordingly, we remand to the BIA to reconsider the motion to reopen in light of Granados-Oseguera’s IAC claim. The general rule that “administrative remedies be exhausted does not preclude” petitioners from raising due process claims where those claims are not based on procedural errors that the BIA could have corrected. Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985).

Ineffective assistance of counsel in a deportation proceeding rises to the level of a due process violation where the proceeding was “so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Castillo-Perez v. INS, 212 F.3d 518, 526-27 (9th Cir.2000) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)). Thus, we have jurisdiction over a class of IAC claims asserted for the first time in a petition for review, even if they have not been exhausted. Granados-Oseguera’s IAC claim falls into this class — he asserts an IAC claim that rises to the level of a due process violation.

To establish a valid due-process IAC claim, [A]n alien must ... clear several hurdles, both substantive and procedural. First, the alien must demonstrate that the attorney’s deficient performance was prejudicial. “Where an alien is prevented from filing an appeal in an immigration proceeding due to counsel’s error, the error deprives the alien of the appellate proceeding entirely.” In cases involving such error, the proceedings are subject to a “presumption of prejudice,” and we will find that a petitioner has been denied due process if he can demonstrate “plausible grounds for relief’ on his underlying claim.

Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006) (internal citations omitted). Ray also clearly explains the procedural hurdles. In Matter of Lozada, 19 I. & N.

Dec. 637, 1988 WL 235454 (BIA 1988), the BIA held that an alien alleging ineffective assistance of counsel must: (1) submit an affidavit demonstrating and explaining his agreement with prior counsel regarding legal representation, (2) submit evidence that he has informed prior counsel of the allegations of ineffective assistance and provided the attorney with an opportunity to respond, and (3) file a complaint against the attorney with proper disciplinary authorities or explain why such a complaint has not been filed. Ray, 439 F.3d at 587-88.

While these so-called Lozada requirements help to provide notice and “ensur[e] that a legitimate claim actually exists,” id. at 588, they “are not sacrosanct.” Id. (quoting Castillo-Perez, 212 F.3d at 525). In fact, “we have not hesitated to address ineffective assistance of counsel claims even when an alien fails to comply strictly with Lozada ” where the record shows a “clear and obvious case of ineffective assistance.” Id.; Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227(9th Cir.2002); Castillo-Perez, 212 F.3d at 525 n. 11; Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.2000). This is such a case.

The substantive hurdle is surmounted in this case, and prejudice is clear. Also clear is the record of ineffective assistance by counsel, so that, despite the fact that the Lozada requirements have not yet been satisfied, we may find that Grana-dos-Oseguera has established a due process IAC claim. Granados-Oseguera received such poor counsel that he was “prevented from reasonably presenting his case,” thereby denying him due process. Lopez, 775 F.2d at 1017. Counsel failed to petition for review of the BIA’s

summary affirmance, forfeiting permanently his client’s opportunity to challenge the underlying order of removal. Then, counsel failed to seek an extension of his client’s voluntary departure period when his client’s daughter and father fell ill and required his care. After failing to seek an extension, counsel then failed to file a motion to reopen within Petitioner’s 30-day voluntary departure period where counsel knew or should have known that Petitioner would be barred from relief if he failed to file within the 30-day departure period.

The record is also absolutely clear that counsel received notice several times, from the IJ directly in court followed by written notice after the IJ’s decision; written notice also followed the BIA’s affirmance of the IJ, warning of the consequences if Petitioner failed to depart within his 30-day window. In addition, case law at the time was clear that motions to reopen filed after the voluntary departure period had expired would be denied as untimely. Shaar, 141 F.3d at 956. There is also no doubt that these failures by his counsel were prejudicial to Granados-Oseguera’s claim.

The BIA denied his motion to reopen for procedural reasons — it was filed well outside of his 30-day voluntary departure period. This untimeliness was the direct result of the inadequacy of Petitioner’s counsel. The government has not rebutted this. In a similar case, we held that the petitioner’s efforts to seek adjustment of status, particularly in the wake of the Department of Labor’s approval of his labor certification provide “plausible ground for relief.” Ray, 439 F.3d at 588(quoting United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir.1996)).

The BIA could “plausibly” have found that Granados-Ose-guera was eligible for the relief sought— an opportunity to seek adjustment of status in light of his pending labor certification, particularly following the Department of Labor’s approval of his application in December, 2002. We thus find that his counsel’s inadequate performance was prejudicial.

Because the BIA has not yet had the opportunity to consider Granados-Osegu-era’s claim of ineffective assistance of counsel and his request for adjustment of status, we are reluctant to “rule on the merits of an issue that the BIA has not itself addressed.” Ray, 439 F.3d at 591. To remedy an otherwise intractable injustice, we grant Granados-Oseguera’s petition for review, and remand this case to the BIA to reconsider Granados-Osegu-era’s motion to reopen in light of his IAC claim. PETITION GRANTED, in part; DISMISSED, in part; DENIED, in part. .

Granados-Oseguera also challenges the BIA's affirmance of the IJ's decision without opinion and the IJ’s hardship determination. We are without jurisdiction to consider either of these issues as Petitioner did not petition for review within 30 days of the BIA’s affir-mance. 8 U.S.C. § 1252(b)(1); see Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996) (holding that we do not have jurisdiction to consider the underlying final order upon petition for review of a motion to reopen where the petitioner did not earlier seek review of that underlying final order).

Furthermore, we have upheld the BIA's authority to affirm without opinion. Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir.2003). We are also without jurisdiction to review the IJ's determination that Petitioner's daughter would not suffer exceptional and extremely unusual hardship upon his removal. Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003). We therefore dismiss these portions of the petition for review. . The INA permits the filing of only one motion to reopen. .

Although December 6, 2002 is 91 days after September 6, 2002 when the BIA denied Petitioners’s appeal, the BIA accepted the motion as timely because the one-day delay in filing was the result of inclement weather. . The relevant statutory provisions provide that a “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(7)(C)(i), and that the maximum voluntary departure period is 60 days, 8 U.S.C. § 1229c(b)(2). . We distinguish two types of cases from this case: those where, without excuse, no motion to reopen was ever filed, e.g., Liu v.

Waters, 55 F.3d 421, 424 (9th Cir.1995); Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.1994), and those where a motion to reopen was filed by new counsel. E.g., Ontiveros-Lopez v. INS, 213 F.3d 1121, 1122 (9th Cir.2000). Here, Granados-Oseguera was represented by the same counsel throughout his proceedings before the agency, foreclosing all opportunity to argue to the BIA the defalcations of his counsel. The dissent fails to recognize this distinction. . The dissent relies on Ray as requiring Gra-nados-Oseguera, through new counsel, to seek reopening before the Board.

However, new counsel, recognizing the numerical bar imposed by the BIA, instead sought relief in our court. We note also that this case was pre-Ray. We decline to require counsel to violate the numerical rule and to anticipate that a narrow exception to the rule might be recognized. We conclude that exhaustion before the agency in this case is not required. . However, as a condition of reconsideration, the BIA may require compliance with Lozada.