Things No Lawyer Should Want to See Written About Him in a Court Opinion

“Counsel shall not charge petitioner, directly or indirectly, for the attorney’s fees and costs associated with this petition. Within 30 days of this order, counsel shall file a certificate stating under oath that he has discussed this matter with his client and has refunded any money he may have charged her for working on this petition.” Law students who read this blog — view this as a cautionary tale. The details are in Monges-Garcia v. Holder (9th Cir. Aug. 28, 2012) (nonprecedential) (quoted partly from the Westlaw report of the case):

Eduardo Soto, Esquire, The Law Office of Eduardo Soto, Coral Gables, FL, for Petitioner.

Edward Earl Wiggers, Esquire, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–991–167.

Before KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and KORMAN, Senior District Judge….

We dismissed this petition last year because Noemi Monges–Garcia failed to submit an opening brief. We reinstated the petition but must again dismiss because the opening brief doesn’t comply with our rules and fails to raise a specific and distinct challenge to the BIA’s order dismissing her appeal.

The opening brief is very nearly the same counsel submitted to us in 2004, before we remanded this case to the BIA. See Monges–Garcia v. Gonzales, 228 Fed. App’x 665, 667 (9th Cir.2007). It adds a sentence and modifies another to tell us the agency was “incorrect” and “should be overruled,” but it’s otherwise cut-and-pasted from the previous filing. Our rules don’t allow parties to “append or incorporate by reference briefs submitted to … this Court in a prior appeal,” 9th Cir. R. 28–1(b), and this case shows why. Petitioner’s recycled brief raises an issue that was resolved before remand, fails to address the agency’s latest decision and reasoning and doesn’t even cite 8 C.F.R. § 1003.23(b)(1), the regulation we asked the BIA to interpret. So far as we can tell, petitioner’s attorney didn’t read the agency’s decision.

The government called Monges–Garcia’s attention to the defects in her brief, arguing that it didn’t comply with Fed. R.App. P. 28(a) and failed to “specifically and distinctly” challenge the agency’s decision. Resp’t Br. 12–14; see also Castro–Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005). Yet she never filed a reply and “made no attempt to correct the glaring deficiencies in the brief.” Han v. Stanford Univ., 210 F.3d 1038, 1040 (9th Cir.2000).

Dismissal of a petition for insufficient briefing may in some circumstances have harsh results for a petitioner, especially “when the fault lies solely with his or her counsel.” Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir.2007). But Monges-Garcia informs us that she has an alternate avenue of relief: The government is willing to file a joint motion to reopen her in absentia deportation order. Such joint motions are not subject to the time limits on other motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(iii), 1003.23(b)(4)(iv), and may provide Monges–Garcia with the relief she seeks.

Counsel shall not charge petitioner, directly or indirectly, for the attorney’s fees and costs associated with this petition. Within 30 days of this order, counsel shall file a certificate stating under oath that he has discussed this matter with his client and has refunded any money he may have charged her for working on this petition….