U.S. Circuit Judge James Andrew Wynn, joined by U.S. Circuit Judge DeAndrea Gist Benjamin, said in the Wednesday that Sulma de Jesus Guandique-de Romero was denied a "fundamentally fair removal hearing" when her original attorney proposed she belonged to a particular social group of citizens whose spouses are "gainfully employed."
The judges said in the opinion that wealth- or employment-based distinctions "had been repeatedly rejected."
They explained that an attorney's duty to provide effective counsel includes the duty to sufficiently investigate and research a client's case in order to support informed legal judgments.
But by proposing "only a clearly foreclosed legal theory," Guandique's former counsel failed to clear that low bar and doomed Guandique's claim from the very beginning of her hearing, thus rendering the proceeding "fundamentally unfair," Judge Wynn said.
In reviving Guandique's case, Judge Wynn said several other circuit courts had expressly recognized that ineffective assistance of counsel in a removal proceeding can violate a noncitizen's due process rights. He said the Fourth Circuit was joining the other circuits in concluding that "for noncitizens who manage to retain an attorney, the right to a fundamentally fair proceeding can be violated by ineffective assistance of counsel."
Concurring only in the judgment, Chief U.S. Circuit Judge Albert Diaz said he'd also grant Guandique's petition for review, but can't join in the majority's opinion.
Judge Diaz said the majority could have granted Guandique's petition "without deciding fraught and complex Fifth Amendment questions."
"If there are two ways to resolve a case — one constitutional, one not — we ought to pick the latter if we can," Judge Diaz said. "In their haste to break new constitutional ground, my colleagues disregard that rule. I would honor it."
According to Thursday's opinion, Guandique fled to the U.S. in December 2016 following months of monetary and sexual extortion by a gang that had years earlier threatened to kill her husband unless he paid the gang $3,000. Guandique's husband had also earlier fled to the U.S. after threats against him continued, leaving Guandique in El Salvador with their two young children.
In the U.S., Guandique applied for asylum and retained an attorney to represent her in her proceedings. The attorney, however, did not meet with Guandique before her removal hearing to prepare, and did not inform her that she needed to establish a membership in a particular social group.
Guandique's removal hearing was held in October 2019, during which an immigration judge asked the attorney for his proposed particular social group.
The attorney, in response, said the group was "El Salvador citizens whose spouses are gainfully employed in the United States."
"That's the particular social group I can think of," the attorney had said, according to the Fourth Circuit's opinion.
"But as the immigration judge later correctly concluded, that proposed [particular social group] was foreclosed by controlling precedent that prohibits wealth-based [particular social group]," Judge Wynn said in the Thursday opinion.
Guandique's former attorney had filed an appeal to the Board of Immigration Appeals, which denied the appeal.
Guandique, represented by a new attorney, then urged the BIA to reopen her case, asserting that she was prejudiced by her former attorney's ineffective assistance of counsel. She said her former attorney failed to submit a plausible particular social group and failed to elicit testimony that the gang had sexually extorted Guandique.
The BIA denied her request, prompting her appeal to the Fourth Circuit.
In vacating the BIA's denial of Guandique's asylum and withholding-of-removal claims, and remanding to the BIA with instructions to remand for a new hearing, the Fourth Circuit said Wednesday that Guandique met her burden of showing she was prejudiced because she had two other proposed alternative particular social groups that "stood a reasonable chance of success."
One of those proposed groups was for "El Salvadoran women living under gang control."
"This [particular social group] was likely cognizable," Judge Wynn said, noting that the Fourth Circuit had previously reversed the denial of a similar group of "unmarried mothers in Honduras living under the control of gangs."
The judges said there was a reasonable probability that a different lawyer could have established a nexus between the proposed group and Guandique's persecution.
"Because Guandique has put forth two plausible alternative PSGs that were available to her counsel and for which she likely could have shown nexus, she has demonstrated a reasonable probability of a different result had her case been in the hands of a different attorney," the judges said.
Simon Y. Sandoval-Moshenberg of Murray Osorio PLLC, an attorney for Guandique, told Law360 on Friday that the asylum system is "infamously complex, and only works properly when immigrants have competent legal representation."
"Unfortunately, some attorneys take advantage of their unsophisticated immigrant clients to provide representation that is of such poor quality that it sinks an otherwise viable asylum application," Sandoval-Moshenberg said. "This can have life-or-death consequences."
Sandoval-Moshenberg said that while the BIA has long recognized that ineffective assistance of counsel can be a reason for granting immigrants a second chance at applying for asylum, "their standards were overly restrictive."
He said the Fourth Circuit's ruling "gives everyone within the system a set of workable and fair standards for when asylum-seekers should be allowed a second chance to make their case for protection from persecution and torture."
The U.S. Department of Justice did not immediately respond to a request for comment on Friday.
U.S. Circuit Judges Albert Diaz, James Andrew Wynn and DeAndrea Gist Benjamin sat on the Fourth Circuit panel.
Guandique is represented by Sarah Shapiro, Charlotte Lawrence, Caroline Lefever and Quynhanh Tran of Yale Law School, Paul W. Hughes and Sarah P. Hogarth of McDermott Will & Schulte, and Simon Y. Sandoval-Moshenberg of Murray Osorio PLLC.
The government is represented by Sarah A. Byrd, Jennifer Parker Levings and Sarah E. Witri of the U.S. Department of Justice.
The case is Sulma Guandique-De Romero v. Pamela Bondi, case number 24-1154, in the U.S. Court of Appeals for the Fourth Circuit.
--Editing by Lakshna Mehta.
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