United States v. Lopez-Chavez, No. 11-50277 (9th Cir. 2014)
Annotate this CaseDefendant appealed his conviction for criminal reentry, collaterally attacking his underlying removal order. The court concluded that defendant's attorney in the immigration proceedings provided ineffective assistance of counsel by erroneously conceding to his removability based on defendant's prior conviction under Missouri Revised Statutes 195.211 and by failing to appeal the removal order to the BIA and failing to petition the Seventh Circuit for review. The court held that defendant received ineffective assistance of counsel throughout his immigration proceedings, he was deprived of his right to due process, the proceedings were fundamentally unfair, and the indictment for criminal reentry must be dismissed.
Court Description: 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.
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