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Citations for ILW.COM's Seminar
Removal For Experts
Session 2 held on April 15, 2010

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From Anne Relias

Ineffective assistance of counsel and due diligence

  • 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 respondents 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. Atty 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 Appx. 277, 279-80 (11th Cir. 2007) unpublished decision.
No notice and rescinding an in absentia order

  • 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. Atty 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. Atty Gen., 284 F.3d 1258 (11th Cir. 2002).
Validity of Post Departure Bar on MTR found at 8 CFR 1003.2(d)

  • 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)).
Circuit Court review of MTR

  • Kucana v. Holder, 130 S.Ct. 827 (2010);
  • Munoz de Real v. Holder, 595 F.3d 747 (7th Cir. 2010).
Supreme Court, Defense Counsels Advice Regarding Immigration Consequences of Plea

  • Padilla v. Kentucky, 559 U.S. ___, 2010 U.S. LEXIS 2928 (Mar. 31, 2010).
From Debbie Smith

LPR Cancellation of Removal/Corroboration

  • 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)
Ineffective Assistance of Counsel