United States v. Lopez-Chavez

Ineffective assistance of counsel exists where an attorney concedes removability based on a prior conviction and for failing to appeal the decision of the court, which if properly appealed the court would have been bound by precedent to render a favorable holding in favor of the client.

Brigidio Lopez-Chavez challenges his criminal conviction of re-entry into the US. Lopez-Chavez argues that he received ineffective assistance of counsel at his removal hearing where his attorney (1) conceded removability based on a prior conviction and (2) failed to pursue appellate proceedings that would have resulted in a favorable holding for his client. The panel notes that the defendant must show, among other things, that the removal was “fundamentally unfair”. A removal is “fundamentally unfair” if the defendant’s due process rights were violated in the removal proceedings and he suffered prejudice as a result. During the time of Lopez- Chavez’s removal hearing, there was a circuit split in determining whether the previous drug conviction qualified as an aggravated felony. The Second, Third and Ninth circuit prescribe to the Lopez/Moncrieffe rule which states that “unless a state offense is punishable as a federal felony it does not count” as a felony punishable under the Controlled Substances Act. The Fifth circuit and several other circuits have concluded that a drug offense that is punishable under the Controlled Substances Act is an aggravated felony under the INA so long as it is a felony under state law. The BIA adopted a bifurcated rule determining that where a circuit had spoken, it would use the rule of the circuit, but where a circuit had not yet spoken it would use the rule of the Fifth circuit. Where a decision was made and the circuit later spoke on the issue, a defendant could appeal and on remand it would apply whatever rule the circuit adopted. Had his attorney properly appealed the decision, the court would have held in favor of his client in this case. Therefore, he received ineffective assistance of counsel during his removal proceedings, which violated his due process rights as well as providing the requisite prejudice. REVERSED and REMANDED.