Salazar-Gonzales v. Lynch

In effective assistance of counsel is likely when an attorney advises a client to pursue relief that the client is statutory ineligible for, resulting in a the client’s inability to appeal.

Alfredo Salazar-Gonzales (“Salazar”) is a citizen of Mexico who has been residing in the United States for over thirty years. Salazar was present in the United States illegally, and in 2008, he was detained by immigration authorities, where he was later charged with removability. Removal proceedings were commenced against him. Salazar applied for cancellation of removal while his wife began pursuing an I-130 visa for Salazar. Salazar’s application for cancellation was denied, and Salazar followed his attorney’s advice to not appeal and to return to Mexico because it was probable that the I-130 visa would be granted. Salazar was denied the I-130 visa because he was statutorily ineligible for the visa. Following this, Salazar returned to the United States, where he was once again detained. Salazar filed a motion to reopen his removal proceedings, alleging ineffective assistance of counsel. The Immigration Judge and Board of Immigration Appeals (“BIA”) denied Salazar’s motion, to which this appeal followed. On appeal, the Ninth Circuit found for Salazar, holding that the BIA abused its discretion by finding that Salazar’s attorney had made a tactical decision when he supplied wrong advice. The panel held that equitable tolling applied in Salazar’s case concerning his appeal, and that it was not untimely because his attorney’s advice caused Salazar to completely forfeit his right to appeal because of the attorney’s absolutely wrong view of other available relief. Due to the failures of counsel, the panel found that Salazar met all the requirements for equitable tolling. Petition GRANTED and REMANDED.