The Ninth Circuit Substitutes the Word "Plausible" for "Reasonable Probability" to Give a Convicted Child Molester a Chance to Avoid Deportation

By Dan Cadman on July 24, 2019

On July 18, the federal Ninth Circuit Court of Appeals (9-CCA) headquartered in San Francisco filed a decision in the case of Flores v. Barr.

Daniel Flores is a Mexican citizen residing in the United States who was convicted in this country of sexual abuse of a minor. Claiming ineffective assistance of counsel, he appealed to the 9-CCA after: 

  1. serially being denied relief and ordered deported by an immigration judge and the Board of Immigration Appeals (BIA), and then;
  2. being denied the chance to reopen his case.

In addition to ineffective assistance of counsel, Flores challenged whether:

  • his conviction of a California statute should have been deemed an aggravated felony under the Immigration and Nationality Act (INA);
  • and he ought properly have been granted asylum or, in the alternative, withholding of deportation or Convention Against Torture (CAT) relief;
  • or even granted a waiver of removability under Section 212(c) of the INA, which is barred to aggravated felons.

The (new) lawyers representing Flores in this appeal seem to have taken a "throw mud against the wall and see if anything sticks" approach, including disparaging Flores' former lawyers. It worked. The 9-CCA panel considering Flores' case rejected all of his claims except that ineffective assistance of counsel may have prejudiced his entitlement to CAT relief, and therefore it was an abuse of discretion to reject the motion to reopen. The case was sent back to the BIA for reconsideration.

First let me say that it is incredible, and incredibly disturbing, that a man like Flores is still in the United States fighting removal after being released from prison for his offense in 1997 (the conviction itself occurred in 1990). If you read the decision, you will also see that prior to the sexual abuse conviction, his involvement with gangs and drugs led to recruitment as a snitch to save himself from convictions on other grounds. This case represents everything that is wrong with our immigration system, one in which the endless spinning of due process, like a hamster wheel, ensures that almost no one ever really gets deported.

Second let me note that, as my colleague (and former immigration judge) Art Arthur observed in regard to the Flores case,

[T]here is a lot that is wrong with this case, but it is all based on existing Ninth Circuit caselaw. Can circuit courts review discretionary denials of motions to reopen? No, except the Ninth Circuit already said they could. Can they consider appeals by aliens who have been convicted of aggravated felonies? No, except they already said they can. Courts hate jurisdiction stripping provisions, and will twist themselves into pretzels to avoid them.

Third, I think it's worth commenting upon the "ineffective assistance of counsel" on which the 9-CCA has hung its hat in enunciating the Flores decision. In 1984, the Supreme Court rendered a decision in Strickland v. Washington, in which it found that an integral part of the Sixth Amendment right to counsel is the right to effective representation. Specifically, the Court held that lawyers must meet an "objective standard of reasonableness", and in claims arguing a failure to meet that standard, the individual must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different [emphasis added]." The standards enunciated in the Strickland case still hold today in judging claims to ineffective use of counsel.

Although Strickland was a criminal case and Flores is an immigration removal case, it is not unusual once the Court has established a principle to see that principle cross-applied where meaningful. In fact it is the norm. Certainly the plain words articulated by the Court in Strickland have meaning in the deportation context. And yet, typically, the 9-CCA has wandered off script. In sending the case back to BIA for consideration of Flores' CAT claim (which would prohibit his removal to Mexico if granted), the reviewing circuit court panel said:

[A] petitioner need only show that counsel’s deficient performance "may have affected the outcome of the proceedings" by showing "plausible" grounds for relief [emphasis added].

Plausible? What's going on here? "Plausible" is a significantly different standard than the Supreme Court articulation requiring "reasonable probability" of a different outcome but for poor attorney performance. As a contributor to the website has succinctly stated in noting the difference between the words possible, plausible, and probable.

  • Possible = It is not impossible. There is no proof to suggest that it could not be achieved or that it couldn't occur.
  • Plausible = This doesn't sound impossible. As with "possible", there does not seem to be any proof to suggest that it could not be achieved, but it is not definitively possible - it just sounds like it is.
  • Probable = There is a good chance of this happening. Not 100%, but better than 50%.

Substituting the standard "plausible" for "reasonably probable" creates a chasm in linguistic shifts—and therefore in practical application as is evident in the Flores case. Many things can be construed as being on the outer edge of plausible, but well beyond the realm of reasonable probability. One wonders if the panel opted for "plausible" as a substitute to perhaps achieve a result it desired despite the bright line established by the Supreme Court.

The decision is thoroughly discreditable, and shows exactly why so many people, including me, have argued that the 9-CCA should be split to dilute its liberal distortion in applying the immigration law over so large an area of the United States. (See here, here and here.)

Unfortunately that's unlikely. What we are left with is to hope that President Trump has the chance to nominate and see senatorial approval of more conservative—or at least not so spuriously liberal—minds to that bench.