Friday, December 21, 2007

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.  

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