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Elza Avagyan v. Eric H. Holder Jr

July 1, 2011

ELZA AVAGYAN, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL,
RESPONDENT.



Agency No. A095-193-352 On Petition for Review of an Order of the Board of Immigration Appeals

The opinion of the court was delivered by: Opinion by Judge B. Fletcher;

FOR PUBLICATION

OPINION

Argued and Submitted

December 8, 2010-Pasadena, California

Before: Betty B. Fletcher, Marsha S. Berzon, and

Consuelo M. Callahan, Circuit Judges.

Dissent by Judge Callahan

OPINION

B. FLETCHER, Circuit Judge:

Elza Avagyan petitions for review of the Board of Immigration Appeals's (BIA's) denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004). The denial of a motion to reopen is reviewed for abuse of discretion. Id. We grant the petition for review and remand to the BIA for further proceedings consistent with this opinion.

I.

Avagyan, a seventy-one year old native of Turkmenistan and a citizen of Armenia, came to the United States on a visitor's visa in March 2001. She overstayed her visa and filed an application for asylum and withholding of removal on October 16, 2001, stating that she had been persecuted in Armenia due to her political activities. The INS charged Avagyan with removal on January 2, 2002.*fn1 Avagyan's daughter, Naira Vartanyan, has lived in the United States since 1989, and became a naturalized United States citizen on March 28, 2003.

In April 2002, Avagyan retained Ron Martinez (a notario)*fn2 and Joel Spence (an attorney) to represent her. Avagyan communicated primarily with Martinez, who told her that Spence would represent her for $2000. Avagyan first met Spence at a removal hearing on April 16, 2002. He did not ask her any questions about her case. The Immigration Judge (IJ) set Avagyan's removal hearing for November 5, 2003.

Avagyan had no contact with Spence between April 16, 2002 and November 3, 2003; during that time, she met Martinez once, for the sole purpose of paying him $750 in attorney's fees. On November 3, 2003, two days before Avagyan's scheduled hearing, she met Spence in the foyer of an office building. Spence asked Avagyan whether she had any money and whether she wanted to continue the case. When Avagyan insisted on proceeding with the hearing, Spence instructed her to meet him in court and "be ready." He did not ask any questions about her case, describe the hearing process, help prepare Avagyan to testify, or provide information about asylum law.

Prior to November 3, 2003, Avagyan asked Martinez if Vartanyan, as a United States citizen, could help her stay in the country. Martinez told her that if the IJ denied Avagyan's application for asylum and withholding of removal, then Avagyan could get a green card because of Vartanyan's citizenship. Martinez never informed Avagyan that because she was in removal proceedings, the IJ had exclusive jurisdiction over any applications for adjustment of status. Nor did Martinez inform Avagyan that, even if she had a prima facie valid visa application pending, she would be subject to deportation and likely denied the opportunity to apply for adjustment of status if the IJ denied her asylum application.*fn3

On November 5, 2003, after a hearing, the IJ issued an oral decision denying Avagyan's application for asylum and withholding of removal and ordering her removed to Armenia. After the IJ's decision, Avagyan retained Mr. Gevorg (whom she believed was an attorney specializing in immigration appeals) to file an appeal to the BIA and to file a petition for an immediate relative visa that she believed would, if granted, enable her to apply for adjustment of status. Avagyan filed a notice of appeal on November 24, 2003.

On November 25, 2003, one day after Avagyan appealed the IJ's decision, Vartanyan filed an immediate relative visa petition on Avagyan's behalf. Gevorg told Avagyan that she needed to wait until the petition was approved to apply for ...


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