Ninth Circuit Holds BIA Abused its Discretion in Denying Motion to Reopen Based on Ineffective Assistance of Counsel

In the instant petition, the record demonstrates that former counsel filed a boilerplate brief to the BIA that resulted in Petitioner not receiving meaningful review. The BIA abused its discretion when it failed to presume prejudice and instead required Petitioner to demonstrate that she suffered prejudice. Grigoryan v. Keisler, (9th Cir. Nov. 19, 2007).

This is a nice decision that almost creates a per se finding of IAC whenever counsel fails to file and brief an appeal from a decision in immigration court. This circuit is in stark contrast with the Seventh Circuit, where in Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), Justice Posner writes in the majority opinion, dicta language that questions whether an alien in deportation proceedings, because it is essentially civil in nature, has any constitutional right to due process necessitating effective assistance of counsel. Now the DOJ seems to have circulated  a memo throughout their Office of Immigration Litigation ("OIL") to challenge any IAC claim on the basis of no constitutional right to counsel under the 5th Amendment, waiting for case to take up to the Supreme Court.  

Constitutional Tipping Point

"As nightfall does not come all at one, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be aware of change  in the air - however slight - lest we become unwilling victims of  the darkness." Justice William O. Douglas.

This quote struck me as being highly relevant today as the truth about the CIA's interrogation techniques of so-called "terror suspects" and the destroyed video tapes that documented this torture swirls around the news coupled together with water-boarding for all suspects.

"Despite the mystique that surrounds it, and the understandable impulse to treat it as aberrant behavior beyond politics, torture is not particularly complicated or mysterious. A tool of the crudest kind of coercion, it crops up with great predictability whenever a local despot or a foerign occupier lacks the consent needed to rule: Marcos in the Philippines; the Shah in Iran; Saddam in Iraq; the French in Algeria; the Israelis in the occupied  territories; the U.S. in Iraq and Afghanistan.

The widespread abuse of prisoners is a virtual foolproof indication that politicians are trying to impose a system - whether political,religious, or economic - that is rejected by large numbers of people they are ruling."

Klein, Naomi,  The Shock Doctrine: The Rise of Disaster Capitalism, Metropolitan Books, 2007, pg. 125.

Supreme Court Grants Certiorari to Resolve Whether a Motion to Reopen Tolls Voluntary Departure

In Dada v. Gonzales, 207 Fed. Appx. 425, No. 06-60180 (5th Cir. Nov. 28, 2006) (per curiam), Petitioner filed a motion to reopen for adjustment of status two days prior to the expiration of his voluntary departure period. Petitioner also asserted that he was "withdraw[ing] his request for voluntary departure and [was] instead accept[ing] an order of deportation." On February 8, 2006, the BIA denied Petitioner's  motion, finding him  statutorily ineligible for adjustment of  status as a result of his failure  to voluntarily depart within the time period granted. INA  § 240B(b).   In an unpublished opinion, the Fifth Circuit rejected Petitioner's  argument that the filing of a motion to reopen automatically tolls the voluntary departure period, found the BIA's interpretation  of the relevant statutes "reasonable," and denied the petition for review. The Supreme Court denied certiorari on the issue as to whether a person can avoid the consequences  of failing to comply with a voluntary departure order by seeking to withdraw the request for relief, but granted  certiorari on  the tolling  issue.

The Court's decision in Dada will resolve a circuit split on the issue. Four circuits have found that the filling of a motion automatically tolls the voluntary departure period. See Kanivets v. Gonzales, 424 F.3d 330 (3rd Cir. 2005); Sidikhouya v. Gonzlaes, 407 F.3d 950 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325 (11th Cir. 2006).  Two court, including the Fifth Circuit in a separate published opinion, have concluded otherwise. See Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006), petition for cert. pending, No. 06-1252 (filed Mar. 22, 2007); Banda-Ortiz v. Gonzlales, 445 F.3d 387 (5th Cir. 2006), cert. denied, 127 S.Ct. 1874 (2007). 

Second Supreme Court Certiorari Petition

Recently file our second petition for certiorari to the Supreme Court in another deportation proceeding where the government denied our client's application for asylum.  

The specific issue here is whether the prior counsel's representation was ineffective when the counsel was a co-conspirator in an international asylum fraud ring, paid by the asylum broker who was indited, and convicted by an inter-departmental sting operation. 

On appeal before the 4th Circuit, the government moved to exclude all references to the facts and arguments surrounding this criminal activity and the court granted the motion to strike, completely emasculating our client's arguments.  

The application for a stay of the mandate is currently pending before the circuit rider for the 4th, Chief Justice Roberts.  

Watch Out California - One more Attorney on the Loose

The Summer 2007 California Bar Exam results are posted - and I passed on the first try.

The fact of my passing the Cal Bar still has not fully sunk in yet, but my swearing in ceremony is scheduled for Dec. 7th at St. Ignatius Church on campus. Maybe by then, it will have registered. But what a ride its been. 

I would like to thank Greg, my study partner for so many hours in the basement of Zief Library, for your support and patience with my frequently off topic and innane questions. 

This morning, I am picking up our office's second  Petition for Certiorari to the Supreme Court.  The beat goes on.

Stan

On the Supreme Court Docket

The Clerk of the Supreme Court has placed our petition for certiorari on the docket.  The Solicitor General has  30 days to reply to our petition. 

  

New BIA Decision on Motion to Reopen Based on Changed Conditions

A brand new decision from the Board of  Immigration Appeals denying respondent's motion to reopen his deportation proceeding based on "changed conditions" pursuant to INA §208(a)(2)(D) was denied as a successive motion in Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007).

This INA section is different from section 240 which permits motion to reopen for changed country conditions, which is the basis of our Supreme Court petition for cert. 

Petition for Writ of Certiorari - Going Out Today

Just gave the final OK to the print shop  to start printing our first Petition for Writ to the Supreme Court.  

The Supreme Court Rules make printing very difficult for anyone just using a desktop computer and Word.  The "booklet" format calls for 6 1/8" x 9 1/4" white paper, a minimum of 60# weight, using only the Century family of typeface, 12 point with a minimum of 2 point leading, all bound by saddle stitching or perfect binding. Left with no option but to send the job out, and rushed to boot.

I am left with the impression that out legal issue presented is compelling and "certworthy" but now its in the hands of the Court.  Our case involves the Board of Immigration Appeals "heavy burden" standard  they impose on a movant seeking to reopen their deportation proceeding based on changed country conditions, pursuant to section 240 of the INA. The "heavy burden"  comes right from a  Supreme Court decision in INS v. Doherty, (1992) that states since there is no statutory authority for such a motion, they grant the AG discretionary authority to set the standard.   However, Congress did grant explicit statutory authority in the IIRIRA Act of 1996, under section 240(c)(7)(C)(ii). 

This is  the basis of our petition, that the express intent of Congress  is not being adhered to by the BIA. 

My Research Paper Accepted for Publication

Just got notified that my research paper on asylum law was accepted for publication on the USF Journal of Law and Social Challenges. 

I spend a great deal of time and energy in researching and writing this paper. It is over 60 pages in length and quite detailed.  I am very happy that it will be published. 

More to follow as our office picked up our second petition for certiorari to the US Supreme Court.  

Yesterday I wrote the application for stay of the mandate to the Fourth Circuit Court of Appeals and sent it out.

This question involves the court's  granting of the government's motion to strike all of our evidence showing Petitioner's prior counsel was a party to an international asylum fraud ring which resulted in his ineffective assistance of counsel.

Supreme Court here we come

Today we filed  an application to recall and stay the issuance of  the mandate in an immigration case, pending the filing of a petition for writ of certiorari with  the U.S. Supreme Court. 

When we got the client's approval to proceed with his appeal,  I was a little hesitant that we did not have a real issue  to pursue, however, in working on this case  the last two days, IO have really found a bona fide conflict in the manner by which the Board of Immigration Appeals handles a motion to  reopen.  

More to follow.

Human Rights Watch Releases New Report on Israeli - Lebanon War

Last week on September 6, 2007, Human Rights Watch ("HRW") released their detailed report  on civilian casualties in the Israeli - Lebanon War of last summer.  In the report, HRW lays the blame from the vast majority of civilian deaths at the doorstep of  Israel's indiscriminate airstrikes, not Hezbollah's shielding as claimed  by Israeli officials.  

Of the approximately 900 civilian deaths inside Lebanon during the July-August 2006 War, HRW investigated more than  500 of the deaths in making their determination in the released report.  

The full report is available here: http://hrw.org/reports/2007/lebanon0907/

Ninth Circuit En Banc Decision on Indonesian Christian Asylum Claims

Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) en banc.

Last May, the Ninth Circuit released  their long awaited en banc decision on the fate of thousands of  Indonesian Christians who filed  for asylum premised upon their persecution  "on account" of their religious beliefs.  

In the decision authored by the Honorable Jay S. Bybee, the court held that in the case of Marjorie Konda Lolong, she had nothing to fear back in Indonesia because the government is not "unable or unwilling to control the perpetrators of this violence." Id. at 1180.  The decision opines further, "the government of Indonesia  has  shown its general commitment to freedom of religion and its lack of institutional discrimination against the ethnic Chinese minority."  

The court I believed feared a general  grant of asylum to any and all ethnic Indonesian Christian Chinese.  The larger effect of this en banc decision however is  to give the green light to all pending asylum claims by this persecuted group and they are being denied relief as quickly as the wheels of justice can deliver it.