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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.

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