                                                                               FILED
                            NOT FOR PUBLICATION                                AUG 31 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LUISA IGNACIA ROJAS-LOPEZ,                       No. 08-72028

              Petitioner,                        Agency No. A096-345-965

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted August 9, 2012
                               Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.

       Luisa Rojas-Lopez, a native and citizen of Mexico, petitions for review of

the decision of the Board of Immigration Appeals (BIA) denying her motion to

reopen the removal proceedings against her. Rojas-Lopez’s motion to reopen

raised two independent grounds: (1) that Rojas-Lopez had received ineffective

assistance of counsel during her initial appeal to the BIA, and (2) that material,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
previously unavailable evidence warranted a new hearing before the Immigration

Judge (IJ) on the issue of hardship to Rojas-Lopez’s U.S.-citizen children. We

grant the petition as to the first ground and retain jurisdiction over the second.

      The government asserts that the ineffective assistance of privately retained

counsel in immigration proceedings cannot form the basis of a due process

violation, and that our prior decisions have merely assumed the existence of such a

due process right. This argument is baseless. For nearly three decades, we have

recognized that the ineffective assistance of counsel may violate due process when

it renders immigration proceedings “so fundamentally unfair that the alien was

prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 1015, 1017

(9th Cir. 1985); see also Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir.

2008).

      We hold that the BIA abused its discretion in denying Rojas-Lopez’s

ineffective assistance claim. The evidence compels the conclusion that counsel’s

representation was deficient. Counsel’s failure to file a brief on Rojas-Lopez’s

behalf clearly constituted deficient representation. Rojas-Garcia v. Ashcroft, 339

F.3d 814, 825 (9th Cir. 2003). The BIA’s apparent suggestion that no attorney-

client relationship existed because counsel “filed the Notice of Appeal on behalf of

the respondent pro se” is directly contradicted by the evidence, not the least of


                                           2
which is counsel’s own statements, in response to Rojas-Lopez’s claim, that she

“signed another contract with [Rojas-Lopez] to file an appeal to [the] BIA,” “wrote

[the] notice to appeal for her,” and “still intended to take care of her case if she did

follow my instructions.” Further, 8 C.F.R. § 1003.102(t) makes it clear that

attorneys may not prepare filings for an individual—as counsel did here with

respect to the Notice of Appeal—without signing them or entering an appearance

(and thus forming an attorney-client relationship).

      Alternatively, even if there were no attorney-client relationship from the

inception of the proceedings before the BIA, one undoubtedly became established

when counsel filed a Notice of Entry of Appearance in Rojas-Lopez’s case with the

BIA. At that point, a brief obviously inapplicable to Rojas-Lopez’s case (referring

to a male petitioner who had been denied cancellation of removal on grounds

different from those applicable to Rojas-Lopez) had already been filed.1 The record

reflects no efforts by counsel to rectify the situation, either by requesting that the

BIA permit her to replace the brief that had been filed or to supplement it with a

brief actually pertaining to Rojas-Lopez’s case. It is thus beyond serious dispute

that counsel’s actions denied Rojas-Lopez her “right to competent representation,”


      1
        It is unclear who actually filed the deficient brief, and we need not resolve
that dispute here. It suffices to note that the BIA refused to consider the brief
because it did not “reflect the facts of [Rojas-Lopez’s] case.”
                                           3
Ray v. Gonzalez, 439 F.3d 582, 587 (9th Cir. 2006), and thus rendered the

proceedings “so fundamentally unfair that [Rojas-Lopez] was prevented from

reasonably presenting [her] case” to the BIA, Lopez, 775 F.2d at 1017.

      The evidence also compels the conclusion that Rojas-Lopez was prejudiced

as a result of counsel’s deficient performance. The BIA asserted that no prejudice

could be demonstrated because, when it denied Rojas-Lopez relief, it “fully

considered” her claim, “including all of the evidence.” Even if we were inclined to

rely on such an assertion, it would not answer Rojas-Lopez’s claim of prejudice,

given that one of the contentions in Rojas-Lopez’s Notice of Appeal was that she

had been deprived of due process when the IJ prevented her from entering

evidence into the record in the first place. The BIA recognized that, even without a

pertinent brief, Rojas-Lopez’s was a “close case” and that she had demonstrated

“considerable” hardship. This suffices to establish that counsel’s failure to file any

brief on her behalf “may have affected the outcome of proceedings,” and thus that

Rojas-Lopez suffered prejudice. Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir.

2008) (internal quotations omitted).

      Accordingly, we grant Rojas-Lopez’s petition for review as to the claim of

ineffective assistance of counsel. We remand to the BIA for the limited purposes of

(1) permitting new briefing on the appeal of the Immigration Judge’s decision of


                                           4
March 27, 2006, denying her cancellation of removal, and (2) resolving that

appeal. See Singh v. Napolitano, 577 F.3d 988, 988 (9th Cir. 2009).

      Because we will have no need to address the portion of Rojas-Lopez’s

motion to reopen that relates to new evidence if the BIA reverses the IJ’s March

27, 2006, decision on remand, we decline at this time to address that part of her

petition for review. Instead, we stay that part of Rojas-Lopez’s petition for review

and retain jurisdiction over that part of Rojas-Lopez’s motion to reopen. The

parties shall provide this court with a copy of the BIA’s decision on this limited

remand within 45 days of its issuance.

      Petition for review GRANTED in part and STAYED in part;
      REMANDED in part.




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