- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 09-09-2011
- Case #: 06-75319
- Judge(s)/Court Below: Circuit Judge Berzon for the Court; Circuit Judge B. Fletcher; Circuit Judge Callahan dissenting
- Full Text Opinion
Six months after Santiago-Rodriguez became a lawful permanent resident of the United States, he returned to Mexico to get married. His wife and brother reentered the States with him, both illegally. All three were arrested. Santiago did not deny smuggling his wife but maintained that the brother entered independently. Santiago testified he did not understand his initial interrogation or the consequences of the admission he signed. Without his assent, Santiago’s El Paso attorney admitted the allegations and conceded removability in a motion to change venue. Santiago moved to withdraw the admission as to his brother. The IJ denied and the Board of Immigration Appeals (“BIA”) affirmed. The Ninth Circuit, however, stated that under Velazquez, Santiago would remain bound where the admission served a strategic purpose, such as attaining removal to another venue, but he would not be bound in the presence of “egregious circumstances,” such as ineffective assistance of counsel. Here, the Court found Santiago’s admission was the result of ineffective counsel where counsel (1) entered an admission on Santiago’s behalf without investigating the discrepancy between Santiago’s story and government allegations; (2) failed to respond to Santiago’s complaint regarding representation; and (3) where “boilerplate representation” in the motion to change venue misrepresented Santiago’s intentions for seeking relief. Further, because ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment, the BIA should have allowed Santiago to withdraw his admission. The Court instructed that if Santiago is not found removable for smuggling his brother, he must be allowed to seek waiver of removability for smuggling his wife. PETITION GRANTED; REMANDED.