USA v. Brigido Lopez-Chavez

Filing

FILED OPINION (ALEX KOZINSKI, STEPHEN R. REINHARDT and RICHARD R. CLIFTON) REVERSED AND REMANDED. Judge: SR Authoring, FILED AND ENTERED JUDGMENT. [9155091]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 11-50277

v.

D.C. No.
3:10-cr-04882-LAB-1

BRIGIDO LOPEZ-CHAVEZ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
January 6, 2014—Pasadena, California
Filed July 3, 2014
Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Reinhardt

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UNITED STATES V. LOPEZ-CHAVEZ
SUMMARY*

Criminal Law
The panel reversed a criminal judgment and remanded for
dismissal of an indictment charging illegal reentry under
8 U.S.C. § 1326 in a case in which Brigido Lopez-Chavez
argued that his attorney in the immigration proceedings
provided ineffective assistance of counsel.
The panel held that Lopez-Chavez received ineffective
assistance of counsel, where his attorney (1) conceded
removability based on Lopez-Chavez’s prior conviction for
possession of marijuana with intent to deliver under Missouri
Revised Statutes § 195.211, which covers conduct that may
fit under either the felony or the misdemeanor provisions of
the Controlled Substances Act; and (2) failed to pursue
appellate proceedings that the BIA had announced could
result in a holding that Lopez-Chavez’s conviction did not
constitute a removable offense. The panel held that counsel’s
conduct prevented Lopez-Chavez from reasonably presenting
his case, rendered the proceedings fundamentally unfair, and
resulted in prejudice.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Harini P. Raghupathi, Federal Defenders of San Diego, San
Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, San Diego, California, for
Plaintiff-Appellee.

OPINION
REINHARDT, Circuit Judge:
Brigido Lopez-Chavez challenges his conviction for
criminal reentry by making a collateral attack on his
underlying removal order. He argues that his attorney in the
immigration proceedings provided ineffective assistance of
counsel in erroneously conceding his removability, failing to
appeal the removal order to the Board of Immigration
Appeals (“BIA”), and failing to petition the Seventh Circuit
for review. He asserts that counsel’s ineffective performance
was prejudicial because Lopez-Chavez’s state crime of
conviction—possession of marijuana with intent to deliver
under Missouri Revised Statutes § 195.211—did not
constitute an aggravated felony under the Immigration and
Nationality Act (“INA”). We hold that Lopez-Chavez
received ineffective assistance of counsel throughout the
immigration proceedings, that he was deprived of his right to
due process, that the proceedings were fundamentally unfair,
and that the indictment for criminal reentry must be
dismissed.

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UNITED STATES V. LOPEZ-CHAVEZ
I.

Brigido Lopez-Chavez is the son of a seasonal
agricultural laborer who originally came to work in the
United States through the Bracero Program. In 1984, when
his father began to have health problems and could no longer
endure the physically demanding work in the fields, LopezChavez came to Live Oak, California, and worked picking
lemons, cherries, apples, strawberries, grapes, and lettuce, in
order to help support his family. In 1986, Lopez-Chavez
moved to St. Louis, Missouri, where he worked as a busboy
and then a prep cook in a Chinese restaurant. On December
1, 1990, Lopez-Chavez became a legal permanent resident.
He paid taxes and purchased a mobile home but was still able
to send money home to his parents in Mexico to which his
father had returned. Lopez-Chavez also helped his sister and
her family and his brother and his family settle into St. Louis
and find employment.
On February 7, 2003, Lopez-Chavez was convicted of
possessing marijuana with intent to deliver under Missouri
Revised Statutes § 195.211. He received a sentence of 90
days with work release authorization and five years
probation. On June 13, 2003, he was issued a Notice to
Appear (“NTA”) that set forth five factual allegations:
(1) Lopez-Chavez was not a citizen or national of the United
States, (2) he was a native and citizen of Mexico, (3) he
entered the country without inspection, (4) he adjusted to the
status of Legal Permanent Resident in 1990, and (5) he was
convicted for the offense of “Possession with Intent to
Deliver a Controlled Substance, a Class B Felony, in
violation of Section 195.211” of the Missouri Revised
Statutes. On the basis of those allegations, he was charged as
being removable under INA § 237(a)(2)(A)(iii) as having

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“been convicted of an aggravated felony as defined in Section
101(a)(43)(B) of the Act, an offense relating to the illicit
trafficking in a controlled substance, as described in section
102 of the Controlled Substances Act, including a drug
trafficking crime, as defined in section 924(c) of Title 18,
United States Code.”
Attorney Pari Sheth entered an appearance as LopezChavez’s counsel. Before the removal hearing had taken
place, Sheth inexplicably filed a “motion to reopen and for a
stay of deportation proceedings pending a bond hearing.” At
the removal hearing, Sheth conceded all five factual
allegations of the NTA. When the Immigration Judge (“IJ”)
asked for a response to the charge that Lopez-Chavez had
been convicted of an aggravated felony, Sheth and the IJ had
the following exchange:
IJ: And charge? (long pause) Yes, I’m still
waiting.
PS:
Right. He admits to part of it. Denies
part of it.
IJ: Well there’s only one part really that, and
that is that after admission you have been
convicted as a aggravated, of an aggravated
felony under 101(a)43(b). That’s it.
PS:

Okay. You’re right sir.

IJ: So I don’t see how it’s divisible really.
PS:

He admits it.

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IJ: Okay. I find I agree. I find that the
respondent is removable as charged.

Sheth reserved Lopez-Chavez’s right to appeal, but did
not file an appeal of the removal order with the BIA, nor did
he petition the Court of Appeals for the Seventh Circuit for
review;1 finally, he did not discuss with Lopez-Chavez the
possibility of challenging the aggravated felony charge.
Lopez-Chavez was deported on August 1, 2003.
On September 30, 2010, Lopez-Chavez was arrested at
the San Ysidro, California, Port of Entry, pedestrian facility,
where he had attempted to elude inspection. He was indicted
for attempted reentry under 8 U.S.C. § 1326(a) and (b) and
illegal entry under 8 U.S.C. § 1325. Lopez-Chavez moved to
dismiss the illegal reentry charge by collaterally attacking the
underlying removal order. He argued that his removal was
invalid, and in violation of his right to due process, because
his immigration attorney had provided ineffective assistance
throughout the removal proceedings and because the state
conviction for possession with intent to deliver did not
constitute an aggravated felony under the INA. The district
judge denied the motion. Lopez-Chavez pleaded guilty to
count one, the attempted reentry charge, reserving the right to
appeal the district court’s denial of his motion to dismiss the

1

Although the Notice to Appear orders Lopez-Chavez to appear at a St.
Louis address, the Order of the Immigration Judge was issued from
Chicago, Illinois. “The petition for review shall be filed with the court of
appeals for the judicial circuit in which the immigration judge completed
the proceedings.” 8 U.S.C. § 1252(b)(2). Here, the proceedings were
completed in Chicago, Illinois, as shown on the Order of the Immigration
Judge recording the order of removal. The parties agree that Seventh
Circuit law would have applied had Lopez-Chavez appealed the removal
order to the BIA and then to the appropriate circuit.

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indictment based on an invalid deportation. Lopez-Chavez
appeals.
II.
“We review de novo the district court’s denial of a motion
to dismiss an 8 U.S.C. § 1326 indictment when the motion to
dismiss is based on alleged due-process defects in the
underlying deportation proceeding.” United States v. MorielLuna, 585 F.3d 1191, 1196 (9th Cir. 2009).
III.
“Because the underlying removal order serves as a
predicate element of an illegal reentry offense under § 1326,
a defendant charged with that offense may collaterally attack
the removal order under the due process clause.” United
States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012)
(quoting United States v. Pallares-Gallan, 359 F.3d 1088,
1095 (9th Cir. 2004)). In order to prevail on such an attack,
a defendant must show, among other things,2 that the removal
was “fundamentally unfair.” 8 U.S.C. § 1326(d)(3). 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. United States v. UbaldoFigueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).

2

Under 8 U.S.C. § 1326(d), an alien may not collaterally attack the
deportation unless: “(1) the alien exhausted any administrative remedies
that may have been available to seek relief against the order; (2) the
deportation proceedings at which the order was issued improperly
deprived the alien of the opportunity for judicial review; and (3) the entry
of the order was fundamentally unfair.” See also United States v. UbaldoFigueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).

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In his motion to dismiss the indictment, Lopez-Chavez
argued that the removal was fundamentally unfair because he
received ineffective assistance of counsel throughout the
removal proceedings and because his state crime of
conviction was not an aggravated felony as defined in federal
law. The district court denied the motion. We agree with
Lopez-Chavez that his due process rights were violated in the
removal proceedings, that he suffered prejudice as a result,
that the removal order was fundamentally unfair, and that the
indictment must be dismissed.
A
To determine whether Lopez-Chavez received ineffective
assistance of counsel, we first consider the question whether
his state crime of conviction—possession of a controlled
substance with intent to deliver, a violation of Missouri
Revised Statutes § 195.211—had been held to be an
aggravated felony under the INA at the time of the
immigration proceedings. We then examine the question
whether his counsel rendered ineffective assistance of counsel
in conceding that Lopez-Chavez was convicted of an
aggravated felony under the INA and whether counsel’s
performance resulted in prejudice that rendered his removal
fundamentally unfair.
Lopez-Chavez was charged as removable on the ground
of having “been convicted of an aggravated felony as defined
in Section 101(a)(43)(B)” of the INA. To determine whether
Lopez-Chavez’s conviction qualifies as an aggravated felony,
we look “to whether ‘the state statute defining the crime of
conviction’ categorically fits within the ‘generic’ federal
definition of a corresponding aggravated felony.” Moncrieffe
v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v.

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Duenas-Alvarez, 549 U.S. 183, 186 (2007)). “[A] state
offense is a categorical match with a generic federal offense
only if a conviction of the state offense ‘necessarily’ involved
facts equating to the generic federal offense.” Id. (citing
Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality
opinion) (alterations and internal quotation marks omitted)).
The Controlled Substances Act treats possession of
marijuana with intent to distribute as a felony, except that
“distributing a small amount of marihuana for no
remuneration” is a misdemeanor. 21 U.S.C. § 841(a) & (b);
Moncrieffe, 133 S. Ct. at 1685–86.3 Missouri Revised
Statutes § 195.211,4 however, criminalizes conduct that may

3

“Sharing a small amount of marijuana for no remuneration, let alone
possession with intent to do so, does not fit easily into the everyday
understanding of trafficking, which ordinarily means some sort of
commercial dealing.” Moncrieffe, 133 S. Ct. at 1693 (internal citation and
quotation marks omitted).
4

The statute states in relevant part:
1. [I]t is unlawful for any person to distribute, deliver,
manufacture, produce or attempt to distribute, deliver,
manufacture or produce a controlled substance or to
possess with intent to distribute, deliver, manufacture,
or produce a controlled substance.
....
3. Any person who violates or attempts to violate this
section with respect to any controlled substance except
five grams or less of marijuana is guilty of a class B felony.
4. Any person who violates this section with respect to

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fit under either the felony or the misdemeanor provisions of
the Controlled Substances Act, because convictions under the
Missouri statute can involve small amounts of marijuana
distributed for no remuneration; yet all the conduct prohibited
by the Missouri statute constitutes a felony under state law.
See, e.g., State v. Kellner, 103 S.W.3d 363, 365–66 (Mo. Ct.
App. 2003) (distribution includes being in possession of a
substance and giving it to another person); State v. Lawson,
232 S.W.3d 702, 705 & n.5 (Mo. Ct. App. 2007) (to show
intent to distribute, the state need not show that a defendant
was dealing drugs but that he “had the intent merely to give
or otherwise transfer [the substance] to someone else”); State
v. Hairston, 268 S.W.3d 471, 473, 476 (Mo. Ct. App. 2008)
(conviction for intent to distribute small amount (24.74
grams) of marijuana). Thus, Lopez-Chavez’s statute of
conviction, the Missouri statute, covers conduct included in
the misdemeanor provisions of the Controlled Substances
Act, as well as conduct that falls within its felony provisions.
At the time of Lopez-Chavez’s removal proceedings in
2003, there was a circuit split as to whether a conviction that
is treated as a felony under state law but as a misdemeanor
under federal law can be treated as an aggravated felony
under the Controlled Substances Act. Lopez v. Gonzales,
549 U.S. 47, 53 (2006); see also Cazarez-Gutierrez v.
Ashcroft, 382 F.3d 905, 910 (9th Cir. 2004). The Second and
Third Circuits, joined shortly thereafter by the Ninth Circuit,
applied the rule adopted by the Supreme Court in Lopez and
central to Moncrieffe. Aguirre v. INS, 79 F.3d 315, 317 (2d

distributing or delivering not more than five grams of
marijuana is guilty of a class C felony.
Mo. Rev. Stat. § 195.211.

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Cir. 1996); Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir.
2002); Cazarez-Gutierrez, 382 F.3d at 910 (9th Cir. 2004);
see also In re Yanez-Garcia, 23 I. & N. Dec. 390, 394–96
(BIA 2002) (en banc). The Lopez/Moncrieffe rule holds that
“[u]nless a state offense is punishable as a federal felony it
does not count” as a felony punishable under the Controlled
Substances Act. Lopez, 549 U.S. at 55. In other words, “to
satisfy the categorical approach, a state drug offense must
meet two conditions: It must ‘necessarily’ proscribe conduct
that is an offense under the [Controlled Substances Act] and
the [Controlled Substances Act] must ‘necessarily’ prescribe
felony punishment for that conduct.” Moncrieffe, 133 S. Ct.
at 1685. In contrast, several other circuits, including the Fifth
Circuit, had 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.
United States v. Hernandez-Avalos, 251 F.3d 505, 508 (5th
Cir. 2001); see also Yanez-Garcia, 23 I. & N. Dec. at 395.
In the face of this conflicting circuit law, in 2002 the BIA
adopted a bifurcated rule in its precedential decision In re
Yanez-Garcia. Where a circuit had spoken, it would use the
rule of the circuit. 23 I. & N. Dec. at 396–97. Where a
circuit had not spoken, it would apply the Fifth Circuit rule,
i.e., “a state drug offense that is classified as a felony under
the law of the convicting state [is permitted] to qualify as a
felony under the [Controlled Substances Act] even if it could
only be punished as a misdemeanor under federal law.” Id.
at 395. If a circuit subsequently spoke, however, the BIA
held that on remand it would apply whatever rule the circuit
adopted. See id. at 396–98; see also, e.g., In re Harris, A41660–573, 2006 WL 2803374, at *1 (BIA July 25, 2006)
(unpublished) (remanding case to the IJ to apply the Seventh

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Circuit’s rule after it had spoken in Gonzales-Gomez v.
Achim, 441 F.3d 532 (7th Cir. 2006) (Posner, J.)).
When Lopez-Chavez’s hearing before the IJ commenced,
the Seventh Circuit had not yet decided the question that
divided the circuits, although it would do so soon thereafter.
See Garcia v. Ashcroft, 394 F.3d 487, 490 (7th Cir. 2005)
(noting that the question remained open). Thus, although an
IJ in the Seventh Circuit was bound to follow the BIA’s
default rule, an alien had a clear path to a contrary ruling by
petitioning the Seventh Circuit for review. In short, in 2003
the BIA would apply the default rule to an appeal filed within
the Seventh Circuit but the ruling would become effective
only if the alien failed to petition the Seventh Circuit for
review or otherwise failed to obtain a favorable decision from
that court as to the rule to be applied. In fact, in 2006, only
three years after Lopez-Chavez’s removal hearing, an alien
did petition the Seventh Circuit, which unhesitatingly adopted
the rule followed by the Second, Third, and Ninth Circuits
(and later the Supreme Court), and remanded the petition to
the BIA for the application of that rule. Gonzales-Gomez,
441 F.3d at 533. Upon receiving the remand from the
Seventh Circuit, the BIA in accordance with Yanez-Garcia
vacated its holding and applied the newly adopted Seventh
Circuit rule to the petitioner. In re Gonzalez-Gomez, No. A73
360 554 (BIA May 8, 2007) (unpublished). Specifically, the
Seventh Circuit held that a state-law felony that is punished
as a misdemeanor by federal law is not an aggravated felony
for purposes of the INA. Gonzales-Gomez v. Achim,
441 F.3d at 533. In other words, the Seventh Circuit adopted
the rule ultimately adopted by the Supreme Court in Lopez,
549 U.S. at 55, and rejected the rule that the IJ had applied in
Lopez-Chavez’s case. The court explained that the BIA’s
position was “inconsistent with the interest in uniform

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standards for removal, and is inconsistent with the legislative
history.” Gonzales-Gomez, 441 F.3d at 533. “Allowing
[relief] to depend on how severely a particular state punishes
drug crimes,” the Seventh Circuit said, “would have the
paradoxical result of allowing states, in effect, to impose
banishment from the United States as a sanction for a
violation of state law.” Id. at 535.
The Missouri statute of conviction covers conduct that
falls within both the felony and misdemeanor provisions of
the Controlled Substances Act. Under the rule adopted by the
Seventh Circuit when it first decided the issue in 2006,
convictions such as Lopez-Chavez’s constituted aggravated
felonies for the purposes of the INA only if they were
punishable as felonies under federal law.5 Gonzales-Gomez,
441 F.3d at 533. Also, under the then-applicable rules of the
BIA, the BIA was required to apply the Seventh Circuit’s rule
to the petitioner in the case in which the rule was first
announced and to all subsequent petitioners. Thus, had
Lopez-Chavez’s counsel challenged the IJ’s ruling regarding
the classification of his conviction as an aggravated felony,
that ruling almost certainly would have been reversed.

5

Although some circuits held, before being definitively reversed by the
Supreme Court under Moncrieffe v. Holder, that a conviction under a
statute that criminalizes conduct described by both the felony and the
misdemeanor provisions of 21 U.S.C. § 841 constituted a felony under the
Controlled Substances Act, the Seventh Circuit was not among them.
133 S. Ct. at 1684 n.3. The government does not argue otherwise.

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B
1

A competent immigration attorney would have been
aware of Yanez-Garcia, 23 I. & N. Dec. 390, one of the few
precedential decisions ever issued by the BIA on the precise
question of when a state drug offense may be considered to
be an aggravated felony under the INA. That decision
explicitly states that the BIA will defer to “applicable circuit
authority” on the issue. Id. at 396. A competent immigration
attorney would, moreover, have determined following
minimal research that the question was an open one in the
Seventh Circuit. In the face of such a clear basis for
appealing Lopez-Chavez’s removal order, no competent
attorney would have conceded that his conviction was for an
aggravated felony under the INA, and no competent attorney
would have failed to appeal to the BIA and then petition the
Seventh Circuit to answer the dispositive open question.
Lopez-Chavez’s attorney inexcusably failed in both of these
ways: he erroneously conceded Lopez-Chavez’s removability
and failed to pursue appellate proceedings that the BIA had
announced could result in a holding that Lopez-Chavez’s
conviction did not constitute a removable offense. These two
actions on counsel’s part alone unquestionably constituted
ineffective assistance, although we note that, in addition,
counsel first reserved the right to appeal and then failed to do
so without advising Lopez-Chavez of his rights or discussing
the possibility of an appeal with him.
There is no constitutional right to counsel in deportation
proceedings, but due process must be accorded under the
Fifth Amendment. Dearinger ex rel. Volkova v. Reno,
232 F.3d 1042, 1045 (9th Cir. 2000). To establish ineffective

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assistance of counsel in immigration proceedings in violation
of the right to due process, a petitioner must show (1) that
“the proceeding was so fundamentally unfair that the alien
was prevented from reasonably presenting his case,” and
(2) prejudice. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.
2004) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.
1985)).
An alien’s “right to a full and fair presentation of his
claim include[s] the right to have an attorney who would
present a viable legal argument on his behalf supported by
relevant evidence, if he could find one willing and able to do
so.” Id. at 1025. In cases in which an attorney did not make
a considered determination as to the viability of arguments
that would benefit an alien, we have held that the alien
received ineffective assistance. In Santiago-Rodriguez v.
Holder, 657 F.3d 820, 835 (9th Cir. 2011), we found an
attorney to be ineffective where she did not have “sufficient
knowledge of the facts to make a strategic judgment based on
the plausible statutory interpretations.” In Mohammed v.
Gonzales, 400 F.3d 785, 794 (9th Cir. 2005), an attorney’s
failure to raise female genital mutilation as part of an asylum
claim was found to be ineffective. We have also found
failure to perform legal research to be ineffective
performance by an attorney. In Lin, the attorney’s “lack of
preparation prevented her from researching and preparing
basic legal arguments fundamental to the asylum claim.”
377 F.3d at 1024. Similarly, the Third Circuit held that
counsel may have been ineffective when, among other errors,
he “had not done enough research to know of the impending
[CAT] treaty, let alone whether it would apply to [his
client’s] claim.” Rranci v. Att’y Gen. of U.S., 540 F.3d 165,
175 (3d Cir. 2008). The BIA, too, has found ineffective
assistance of counsel and allowed the withdrawal of a

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concession where an attorney conceded removability after
“failing to research and advise a client that there [was] no
sound basis for the charges.” In re Shafiee, No. A24 107 368,
2007 WL 1168488, at *1 (BIA Mar. 2, 2007) (unpublished).
Here, it is evident that Lopez-Chavez’s counsel failed to
do the minimal research that would have allowed him to
acquire an understanding of immigration proceedings and
would have revealed the key precedential BIA decision
concerning the ground for Lopez-Chavez’s removability,
Yanez-Garcia. Although, in the colloquy with the IJ, counsel
appeared to begin by conceding the charge “in part” and
denying it “in part”—an illogical response to the charge—he
almost immediately conceded the charge in full when the IJ
pointed out to him that there was no concession to be made
only in part. Counsel then acknowledged without pause, and
without cause, that the IJ was correct and made his
unqualified concession. Moreover, the remainder of the
colloquy with the IJ showed counsel’s utter lack of
understanding of the nature of immigration proceedings.6
Here, as a result of counsel’s erroneous and uninformed
concession that Lopez-Chavez was removable and of his
failure to pursue that open question (in the Seventh Circuit)
through the available appellate fora, Lopez-Chavez was
prevented from “reasonably presenting his case.” Lin,
377 F.3d at 1023.
The government has not suggested, nor have we
discovered, any strategic or tactical reason why Lopez-

6

Lopez-Chavez’s attorney showed a profound and fundamental lack of
understanding of immigration proceedings by, for instance, filing a motion
to reopen before the removal hearing had taken place or the removal order
had been issued.

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Chavez’s counsel would have conceded that Lopez-Chavez
was convicted of an aggravated felony under the INA and
thereby ensured his client’s swift removal. See Singh v.
Holder, 658 F.3d 879, 886 (9th Cir. 2011) (“It is nigh
impossible to imagine how a competent attorney would make
a conscious decision to pursue a course leading to certain
failure, when faced with several paths to success.”). Nothing
in the transcript or in the record suggests that this was a
strategic or tactical decision, let alone an informed one.
Counsel’s concession of Lopez-Chavez’s removability was
particularly grave because it amounted to counsel “giv[ing]
up ‘the only defense available.’” Knowles v. Mirzayance,
129 S. Ct. 1411, 1422 (2009). The “serious consequences of
the admission . . . were as clear then as they are now.”
Santiago-Rodriguez, 657 F.3d at 835.
The government argues that it is not ineffective assistance
of counsel to fail to anticipate later decisions of the court.
“[A] lawyer cannot be required to anticipate [the court’s]
decision in [a] later case, because his conduct must be
evaluated for purposes of the performance standard of
Strickland ‘as of the time of counsel’s conduct.’” Lowry v.
Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (quoting Strickland
v. Washington, 466 U.S. 668, 690 (1984)). “A lawyer’s zeal
on behalf of his client does not require him to file a motion
which he knows to be meritless on the facts and the law.” Id.
Here, however, counsel’s ineffectiveness did not depend on
a later change in law, nor at the time of the removal
proceedings was it “meritless.” The BIA’s governing
decision had made clear that the BIA would follow the law of
the circuit when a circuit spoke on the issue. Because the
Seventh Circuit had not yet spoken, a competent counsel
would have pursued that avenue of relief as suggested by the
BIA’s decision in Yanez-Garcia. It was therefore ineffective

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for an attorney to fail to pursue the open issue, just as it was
ineffective to stipulate that Lopez-Chavez had committed a
deportable offense when the question remained open at the
time of the concession.
In sum, Lopez-Chavez’s counsel’s conduct not only
“prevented [Lopez-Chavez] from reasonably presenting his
case” but rendered the proceedings “fundamentally unfair.”
Lin, 377 F.3d at 1023.
2
To show ineffective assistance of counsel in immigration
proceedings, Lopez-Chavez must show not only, as he has,
that his counsel’s deficient performance rendered the
proceedings fundamentally unfair, but also that counsel’s
performance resulted in prejudice. Correa-Rivera v. Holder,
706 F.3d 1128, 1133 (9th Cir. 2013) (internal quotation marks
omitted). “We find prejudice ‘when the performance of
counsel was so inadequate that it may have affected the
outcome of the proceedings.’” Id. (quoting Ortiz v. INS, 179
F.3d 1148, 1153 (9th Cir. 1999)). Here, we have unusually
clear evidence of what the outcome of Lopez-Chavez’s case
would have been had he received effective assistance of
counsel. As explained above, less than three years after
Lopez-Chavez was ordered removed, the Seventh Circuit, in
a case posing the issue that was decisive in Lopez-Chavez’s
case, decided the open question and adopted the rule
previously announced by the Second, Third, and Ninth
Circuits—a rule under which Lopez-Chavez would have been
found ineligible for removal. Gonzales-Gomez v. Achim,
441 F.3d 532, 533 (7th Cir. 2006). It follows that, had
counsel presented the Seventh Circuit with the question of
which rule to adopt, Lopez-Chavez’s order of removal would

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have been held unlawful and would not have gone into
effect.7 Thus, Lopez-Chavez’s counsel’s ineffectiveness not
only may have affected, but actually did, “affect[] the
outcome of the proceedings.”
We thus conclude that Lopez-Chavez has shown
ineffective assistance of counsel in his immigration
proceedings in violation of his right to due process, as well as
the requisite prejudice.
C
Because Lopez-Chavez received ineffective assistance of
counsel in his immigration proceedings in violation of due
process, and was prejudiced thereby, he has necessarily
established that for the purposes of the collateral attack on his
removal, “the entry of the order [of removal] was
7

Similarly, if the modified categorical approach had been used, LopezChavez would easily have shown that the ineffective assistance “may have
affected the outcome of the proceedings.” Correa-Rivera, 706 F.3d at
1133. It is clear from the record that the documents that may be
considered under the modified categorical approach do not establish “that
the offense involved either remuneration or more than a small amount of
marijuana.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1693 (2013). We
reject the government’s contention that the federal misdemeanor exception
for “distributing a small amount of marihuana for no remuneration,”
21 U.S.C. § 841(b)(4), applies only to distribution and not to possession
with intent to distribute, Lopez-Chavez’s crime of conviction. LopezChavez and the Third Circuit are correct that this distinction leads to
absurd results insofar as “it is impossible to conceive of a case in which
someone could distribute a drug but not, at least for an instant, actually or
constructively possess the drug with intent to distribute,” and thus “every
defendant who fell under Section 841(b)(4) would also be excluded from
it by virtue of the fact that he or she also necessarily possessed the
marijuana in the act of distributing it.” Wilson v. Ashcroft, 350 F.3d 377,
382 n.4 (3d Cir. 2003).

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fundamentally unfair,” thus meeting the principal statutory
requirement under 8 U.S.C. § 1326(d). United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) . The
remaining two requirements for a collateral attack are
procedural: a defendant must show (1) that he “exhausted any
administrative remedies that may have been available to seek
relief against the order,” and (2) that the removal proceedings
“deprived [him] of the opportunity for judicial review.” Id.
at 1048 n.6 (quoting 8 U.S.C. § 1326(d)(1)–(2)). Just as it
rendered the proceeding fundamentally unfair, counsel’s
ineffectiveness also caused Lopez-Chavez’s failure to exhaust
administrative remedies and deprived him of his opportunity
for judicial review. United States v. Gonzalez-Villalobos,
724 F.3d 1125, 1131 n.9 (9th Cir. 2013); see also United
States v. Cerna, 603 F.3d 32, 35 (2d Cir. 2010). The
government’s principal argument in response is that LopezChavez cannot rely on ineffective assistance of counsel
because he failed to comply with Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988). Assuming arguendo that Lozada is
applicable to proceedings under 8 U.S.C. § 1326, the rule
would in any event be of no effect here. The Lozada
requirements need not be applied where the ineffective
assistance of counsel is “clear and obvious” from the record,
as it is here. Hernandez-Mendoza v. Gonzales, 537 F.3d 976,
978 (9th Cir. 2007) (quoting Rodriguez-Lariz v. INS, 282
F.3d 1218, 1227 (9th Cir. 2002)). Thus, Lopez-Chavez
satisfies all three requirements necessary to sustain a

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collateral challenge to his underlying removal.8 See 8 U.S.C.
§ 1326(d).
*
For the reasons given above, we reverse the district court
and remand for dismissal of the indictment.
REVERSED and REMANDED.

8

Accordingly, we need not reach Lopez-Chavez’s alternative argument
that his crime of conviction is not an aggravated felony under the INA in
light of Moncrieffe, 133 S. Ct. 1678. We recently held that the law that
governs removability in collateral attack cases is the applicable law at the
time the case is decided on appeal. United States v. Aguilera-Rios, No.
12-50597, slip op. at 12–13 (9th Cir. June 17, 2014). Under AguileraRios, Moncrieffe is applicable here.