• Hours & Info

    (562) 495-0554
    M-F: 8:00am - 6:00 p.m.
    Sat: 9:00 a.m. - 12:00 p.m.
  • Social

  • Past Blog Posts

Court Upholds BIA Denial to Certify Ineffective Assistance of Counsel Claim Because It Is Not Subject to Judicial Review

In a case of first impression, the Ninth Circuit held ineffective assistance certifications are committed to agency discretion by the plain language of 8 CFR §1003.1(c), which contains no standard or meaningful guidance sufficient for judicial review.

Court Finds Petitioner’s Failure to Brief Her Ineffective Assistance of Counsel Claim Constituted Waiver of the Claim

According Chevron deference to the BIA’s decision, the Fifth Circuit held that the BIA did not err in denying the petitioner’s motion to reconsider her motion to reopen and found that the petitioner had waived her ineffective assistance of counsel claim by failing to brief the issue on appeal.

Sua Sponte Reopening

The Ninth Circuit granted in part and denied in part the petition for review, holding that petitioner’s ineffective assistance of counsel claim did not warrant equitable tolling of the limitations period for his untimely filed motion to reopen. However, the court also found that the BIA’s decision declining to exercise its sua sponte authority to reopen proceedings was based on an erroneous understanding of the legal principles concerning the relationship between prior deportation, reopening of deportation proceedings, and eligibility for INA §212(c) relief.

Need Criminal Relief?

  1. he DC Circuit reversed the district court, finding that the post-plea misrepresentations made by the appellant’s attorney regarding the potential immigration consequences of pleading guilty to federal wire fraud could constitute ineffective assistance of counsel. The court remanded for the district court to consider whether the appellant can show that he was prejudiced by his attorney’s misrepresentations.

Got bad advice from a Lawyer at the BIA?

The Ninth Circuit granted the petition for review, holding that the petitioner was entitled to equitable tolling of his untimely motion to reopen, because his lawyer’s advice to pursue a form of immigration relief for which the petitioner was statutorily ineligible constituted ineffective assistance of counsel. The court remanded to the Board of Immigration Appeals (BIA) with instructions to grant the petitioner’s motion to reopen.

Ineffective Assistance of Counsel grounds to overturn conviction

The Ninth Circuit reversed the district court’s dismissal of a petition for a writ of error coram nobis, finding that the rule in United States v. Kwan—affirmative misrepresentations by defense counsel regarding immigration consequences of a conviction can constitute the basis for an ineffective assistance of counsel claim—survives Padilla v. Kentucky, is not controlled by Chaidez v. United States, and does not establish a new rule of criminal procedure. The court thus found that Kwan could be applied retroactively to support the petitioner’s ineffective assistance of counsel claim, and remanded for the district court to evaluate the merits of the petition.

Ineffective assistance of counsel? You can file the Motion to Reopen past the 90 day deadline

In an 8-1 decision, the Supreme Court reversed the Fifth Circuit’s decision in Mata v. Holderand remanded, holding that a court of appeals has jurisdiction to review a denial of a petitioner’s request to equitably toll the deadline on a motion to reopen.

Court Grants Petition for Review for Ineffective Assistance of Counsel Claim

The Seventh Circuit remanded, holding that the BIA abused its discretion by ignoring a potentially meritorious argument when deciding on the motion to reopen, and that the BIA should determine if the petitioner’s attorneys incompetently neglected to offer evidence and arguments that might have resolved the inconsistencies identified by the Immigration Judge.

Try Federal Habeas Corpus to Vacate a Conviction

Try to Vacate a Crime with a Federal Habeas Corpus

I have been deported outside the U.S. Now What?

I have been deported outside the U.S. Now What?

Question: About 3 years ago, I was deported outside the United States, and I feel it was not done properly and that I was improperly deported. What can I do?

Answer: There are several things that may be done, but a Habeas Corpus is available in certain circumstances. Habeas corpus review can be used to determine whether: (1) petitioner is an alien; (2) petitioner was ordered removed under such section; and (3) petitioner is an LPR, or was granted refugee or asylum status. In determining whether the person has been ordered removed, the court’s inquiry is limited to whether such an order was in fact issued and whether it relates to the petitioner.

Therefore, if you believe you were a lawful permanent resident, but it was wrongfully determined you were not, this option is available to you.

Question: What is I committed a crime and that is why they took away my residency? Can I used Habeas Corpus in that event? I tried to vacate the crime in State Court where I committed the crime, but it was denied.

Answer: There has been lots of case law, motions and documents filed to try to vacate or reduce the conviction so that you would either not be considered deportable or removal and/or so you would not be considered an aggravated felon. However, when the State Court remedies have failed, there is the option (depending on your jurisdiction) of doing a Federal Habeas Corpus in order to try to vacate a State Crime. AEDPA §§101-06 substantially reduced the ability to use 28 U.S.C. §§2254 and 2255 to attack State and Federal convictions. There is now a one-year statute of limitations for filing a habeas petition in federal court attacking a state conviction, §2244(d)(1), or federal conviction, §2255.

Thus, if your crime occurred many years ago, this option will not be available. Unfortunately, AEDPA also strengthened the presumption of correctness of the convictions and restricted successive petitions. However, petitions have been granted to vacate a conviction where the court would not have accepted the plea had it been aware of the immigration consequences.

Question: What if I applied after being released from custody? Will the Court have Jurisdiction?

Answer: Jurisdiction exists for habeas even where alien is released from incarceration. Certain states permit a vacatur of a plea only if filed within a limited time period. For example, Florida permits a party to vacate a plea only if it is filed within 2 years of the conviction.

Question: What is I am time barred from bringing this type of post-conviction relief?

Answer: Where a defendant is time-barred under state post-conviction procedures, he or she may be able to bring a Padilla claim under federal habeas. Ineffective assistance of counsel may be raised under certain circumstances in light of state procedural bars.

The defendant must allege and prove that she would not have entered into the plea if informed of the possibility of removal. Vacation of a plea will vacate the conviction for immigration purposes as long as it was not pursuant to a rehabilitative statute or because of immigration hardship. Unlike a vacatur of a conviction, a vacatur of a sentence may be done for any purpose, including immigration avoidance.

Question: What is I only needed a couple days less on my sentence not to be considered an aggravated felon?

Vacating a sentence is different than vacating a conviction. A party may vacate a sentence for any reason, including immigration avoidance, and it must be given full faith and credit by the Immigration Judges and the Board of Immigration Appeals. There is case law where a sentence was modified nunc pro tunc expressly to avoid deportation as an aggravated felon, IJ and BIA must recognize it.

Question: What about ineffective assistance of counsel?

Answer: If not properly raised previously and depending on your jurisdiction, you many be able to bring this claim under a Federal Habeas Corpus to challenge the State Conviction.

It will not be easy, but may be the difference between coming back to the U.S. versus never coming back.

%d bloggers like this: