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From Anne Relias
Ineffective assistance of counsel and due diligence
No notice and rescinding an in absentia order
- Matter of Compean, Bangalay, J-E-C, 25 I&N Dec. 1 (A.G. 2009);
- Matter of Lozada, 19 I&N Dec. 637 (BIA 1988);
- Matter of Assad, 23 I&N Dec. 553 (BIA 2003);
- Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (upheld denial of MTR where petitioner waited 8 months after learning of ineffective assistance and 5 months after complying with Lozada to file motion);
- Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005);
- Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005);
- Yuan Gao v. Mukasey, 519 F.3d 376 (7th Cir. 2008) (a 74 day wait to file MTR was deemed to be lack of due diligence);
- Singh v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007) (upheld lack of due diligence where respondent waited approximately 6 months to take any action with a new lawyer after he became suspicious);
- Valeriano v. Gonzales, 474 F.3d 669 (9th Cir. 2007) (no equitable tolling where respondent’s new counsel waited approximately 7 months after filing Lozada complaint, to try and get district counsel to agree to joint MTR);
- Galvez Pineda v. Gonzales, 427 F.3d 833, 838-39 (10th Cir. 2005) (although equitable tolling was appropriate for ineffective assistance, the MTR was properly denied for lack of due diligence when it was not filed within 90 days of receipt of the AR);
- Abidi v. U.S. Att’y Gen., 430 F.3d 1148 (11th Cir. 2005) (no equitable tolling for ineffective assistance of counsel on the theory that the 90/180 day period is jurisdictional. There may be a weakening in the 11th circuit decision: Pereira v. U.S. Attorney General, 258 Fed. Appx. 277, 279-80 (11th Cir. 2007) unpublished decision.
Validity of Post Departure Bar on MTR found at 8 CFR § 1003.2(d)
- Matter of GYR, 23 I&N Dec. 181 (BIA 2001);
- Matter of M-D, 23 I&N Dec. 540 (BIA 2002);
- Matter of MRA, 24 I&N Dec. 665 (BIA 2008);
- Matter of CRC, 24 I&N Dec. 677 (BIA 2008);
- Matter of Bulnes-Nolasco, 25 I^N Dec. 57 (BIA 2009);
- Kozak v. Gonzales, 502 F.3d 34 (1st Cir. 2007);
- Lopes v. Gonzales, 468 F.3d 81 (2d Cir. 2006)(statutory scheme draws a distinction between sending notice which can be the basis for an in absentia order and receiving notice which can be the basis for a MTR):
- Santana Gonzalez v. Att’y Gen. of U.S., 506 F.3d 274 (3d Cir. 2007);
- Nibagwire v. Gonzales, 450 F.3d 153 (4th Cir. 2006);
- Maknojiya v. Gonzales, 432 F.3d 588, 589 (5th Cir. 2005);
- Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) (reversed denial of 4th in absentia proceedings where respondent submitted affidavit and other documentation indicating he failed to receive notice notwithstanding evidence that the government properly sent it);
- Derezinski v. Mukasey, 516 F.3d 619 (7th Cir. 2008) (stating that when receipt of notice is at issue, a sworn denial of having received notice makes the issue of receipt one of fact);
- Terezov v. Gonzalez, 480 F.3d 558 (7th Cir. 2007) (stating that all corroborating evidence submitted by an alien regarding a claim of lack of proper notice must be considered even if it is inconclusive);
- Sabir v. Gonzales, 421 F.3d 456 (7th Cir. 2005);
- Gurung v. Ashcroft, 371 F.3d 718 (10th Cir. 2004);
- Dominguez v. U.S. Att’y Gen., 284 F.3d 1258 (11th Cir. 2002).
Circuit Court review of MTR
- Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008) (upholding regulation);
- Coyt v. Holder, 593 F.3d 902 (9th Cir, 2010)(8 C.F.R. § 1003.2(d) is invalid if applied to “involuntarily removed” individuals);
- Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (upholding regulation);
- William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (the prohibition in 8 CFR § 1003.2(d) to MTR where the person is outside the US is contrary to INA § 240(c)(7)(A));
- Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007) (due process not violated where BIA refused to allow respondent, who was outside the US, to reopen his deportation proceeding before his conviction was vacated);
- Mansour v. Gonzales, 47- F. 3d 1194 (6th Cir. 2007) (brief trip to Mexico executed removal order and barred reopening);
- Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003) (finding 8 CFR §1003.2(d) a reasonable construction and not in conflict with 8 CFR 1003.2(a) allowing for sua sponte reopening);
- Singh v. Gonzales, 412 F.3d 1117, 1120-21 (9th Cir. 2005) (person who departs before removal proceedings are initiated and seeks MTR to vacate in absentia order is not barred by 8 C.F.R. § 1003.2(d)).
Supreme Court, Defense Counsel’s Advice Regarding Immigration Consequences of Plea
- Kucana v. Holder, 130 S.Ct. 827 (2010);
- Munoz de Real v. Holder, 595 F.3d 747 (7th Cir. 2010).
- Padilla v. Kentucky, 559 U.S. ___, 2010 U.S. LEXIS 2928 (Mar. 31, 2010).
From Debbie Smith
LPR Cancellation of Removal/Corroboration
Ineffective Assistance of Counsel
- Matter of Almanza-Arenas, 24 I & N Dec. (BIA 2009)
- Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007)
- INA § 240(c)(2), (3) and (4) (burden of proof and corroboration)
- INA § 240A(a) (LPR cancellation of removal)
- Matter of Compean, 24 I & N Dec. 710, vacated 25 I & N Dec. 1 (A.G. 2009)(vacating decision, and directing EOIR to initiate rulemaking procedures to evaluate the Lozada framework and to apply Lozada while rulemaking occurs)
- Matter of Lozada, 19 I & N Dec. 637 (BIA 1988)
- Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008)
- American Immigration Council, Legal Action Center, Litigation Issue Page, Ineffective Assistance of Counsel
- American Immigration Council, Practice Advisory, "Finality" of Removal Orders for Judicial Review Purposes
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