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.