Metropolitan News-Enterprise


Tuesday, September 26, 2006


Page 1


Ninth Circuit Rules Alien’s Ineffective Assistance Claim Need Not Be Pled Before Immigration Appeals Board


By TINA BAY, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled it has jurisdiction to consider an ineffective assistance of counsel claim that was never raised before the Board of Immigration Appeals.

In a 2-1 decision, the court reversed the portion of a Board of Immigration Appeals order denying an alien’s motion to reopen removal proceedings, and remanded the case for reconsideration in light of an ineffective assistance of counsel claim he raised for the first time before the Ninth Circuit.

Mariano Granados-Oseguera, citizen of Mexico, petitioned in 2001 for BIA review of an immigration judge’s order denying his application for removal and granting him 30 days for voluntary departure. He had entered the U.S. without inspection in 1984 and applied for asylum in 1993.

In removal proceedings begun in 1998, Granados conceded removability and applied for cancellation of removal. The immigration judge found that although the petitioner showed 10 years continual presence in the U.S. and good moral character, he failed to show that his qualifying relative, his U.S. citizen daughter, would face exceptional hardship if he were removed from the U.S.

Upon denying Granados’ application for cancellation of removal, the judge warned his lawyer that if his client failed to depart during his voluntary departure period, he would forfeit any opportunity to return to the U.S. for 10 years.

The BIA summarily affirmed the IJ’s decision, noting in its order that the failure to voluntarily depart from the U.S. during the 30-day window would undermine any chance of reentry for 10 years.

Granados’ attorney did not petition for review of the BIA’s decision or seek an extension on his behalf to argue exceptional circumstances. Instead, two months after the finalized departure date—by which Granados did not depart due to family circumstances—the attorney moved to reopen removal proceedings to seek adjustment of status on the basis of his labor certification application.

Denying the motion to reopen proceedings, the BIA noted that both it and the IJ had apprised Granados through his counsel of the consequences of failing to depart.

Granados, represented by three students from University of Arizona’s Roger College of Law, raised an ineffective assistance of counsel claim on appeal. The law students, Josh Chetwynd, Laura Boyle, and Mary Beth Canty, were appointed to represent Granados through the court’s pro bono project, after he initially filed a pro se petition for review of the BIA’s decision.

Senior Judge Betty B. Fletcher, writing for the Ninth Circuit, said:

“In the limited situation where an alien is represented by the same allegedly incompetent counsel throughout agency proceedings including through the filing of his motion to reopen proceedings before the BIA and therefore cannot administratively exhaust a claim for ineffective assistance of counsel, we have jurisdiction to review the denial of the motion to reopen. We will review to determine whether the denial of effective counsel rises to the level of a due process violation and was prejudicial.”

The judge explained that under Matter of Lozada, 19 I. & N. Dec 637 (BIA 1988), an alien alleging ineffective assistance must normally support his claim with evidence, such as an affidavit explaining his agreement with the former counsel regarding legal representation. But in Granados’ case, she said, the record so clearly showed ineffective assistance of counsel rising to the level of a due prejudicial process violation that the court could address his claim despite his failure to satisfy the Lozada requirements.

Senior Judge A. Wallace Tashima concurred.

Dissenting, Judge Consuelo M. Callahan contended that creating a jurisdictional exception for due process claims would obliterate the explicit rule that an ineffective assistance of counsel claim first must be raised before the BIA.

“[T]he majority places the proverbial cart before the horse by concluding that we have jurisdiction before examining the factual basis for the claim,” she explained, concluding the administrative record was devoid of evidence supporting Granados-Oseguera’s ineffective assistance claim.

She characterized the majority’s approach as brushing aside the Lozada requirements with which Granados-Oseguera had made no attempt to comply, noting:

“[T]he majority concedes that the BIA may require that the petitioner’s claim of ineffective assistance of counsel address the Lozada factors.”

The case is Granados-Oseguera v. Gonzales, 03-73030.


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