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2nd Cir reiterates need for BIA rulemaking on ineffective assistance

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2nd Cir reiterates need for BIA rulemaking on ineffective assistance

  1. 1. Second Circuit Reiterates the Need for BIA Rulemaking on Ineffective AssistanceClaims in Yet Another Unpublished DecisionThis unpublished 2nd Circuit decision serves to highlight once again the need forEOIR/BIA to make headway on the rulemaking that was directed in AttorneyGeneral Holder’s first published immigration decision. It seems that the BIA isleaning in a particular direction but has not put forth any rule. There is an item onthe current regulatory agenda:DOJ/EOIR: Proposed Rule Stage—“Motions To Reopen Removal, Deportation, orExclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel”,1125-AA68 (See end of this document.)Commonly called “Compean II”, Decided by Attorney General June 3, 2009: “The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.” Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009).[Emphasis added.]Islam v. Holder, 10-2218-ag NAC, (2nd Cir. Aug. 16, 2011) stated, in part: “.... In Vartelas v. Holder, 620 F.3d 108, 113-15 (2d Cir. 2010), we noted that the BIA has not adopted a single standard for determining whether an alien has shown prejudice. More recently, the BIA issued a precedential decision stating that in the Ninth Circuit “prejudice exists when the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney’s negligence, the outcome of the proceedings may have been different.” Matter of D-R-, 25 I. & N. Dec. 445, --- (BIA 2011) (citing Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004)). .......” At p. 4
  2. 2. Matter of D-R-, 25 I&N Dec. 445 (BIA 2011), included the following in dicta: “As a general rule, to prevail on an ineffective assistance of counsel claim, the respondent must satisfy the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). In addition to substantially complying with these requirements, the respondent must also show prejudice as a result of his attorney’s ineffectiveness. Id. at 640. In the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, prejudice exists when the performance of counsel is so inadequate that there is a reasonable probability that but for the attorney’s negligence, the outcome of the proceedings may have been different. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). “To prevail, the respondent[] must show that the conduct of former counsel was so egregious that it rendered [the] hearing unfair.” Matter of B-B-, 22 I&N Dec. 309, 311 (BIA 1998).” At p. 457
  3. 3. On the Spring 2011 Regulatory Agenda at:http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201104&RIN=1125-AA68 Publication ID: SpringDOJ/EOIR RIN: 1125-AA68 2011Title: Motions To Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claimof Ineffective Assistance of CounselAbstract: The Department of Justice (Department) is proposing to amend the regulations of theExecutive Office for Immigration Review (EOIR) by establishing procedures for the filing andadjudication of motions to reopen removal, deportation, and exclusion proceedings based upon aclaim of ineffective assistance of counsel. This proposed rule is in response to Matter ofCompean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), in which the Attorney Generaldirected EOIR to develop such regulations. The Department also proposes to amend the EOIRregulations which provide that ineffective assistance of counsel may constitute extraordinarycircumstances excusing the failure to file an asylum application within 1 year after the date ofarrival in the United States.Agency: Department of Justice(DOJ) Priority: Other SignificantRIN Status: Previously published in the Agenda Stage of Rulemaking: Proposed RuleUnified Agenda StageMajor: No Unfunded Mandates: NoCFR Citation: Not Yet Determined (To search for a specific CFR, visit the Code of FederalRegulations.)Legal Authority: Not Yet DeterminedLegal Deadline: NoneTimetable: Action Date FR CiteNPRM 07/00/2011 NOTHING YETNPRM Comment Period End 09/00/2011Regulatory Flexibility Analysis Required: Government Levels Affected: NoneNoFederalism: NoIncluded in the Regulatory Plan: NoPublic Comment URL: www.regulations.govRIN Data Printed in the FR: NoAgency Contact:Robin M. StutmanGeneral CounselDepartment of JusticeSuite 2600, 5107 Leesburg Pike,Falls Church, VA 22041Phone:703 305-0470 Email: eoir.regs@usdoj.gov

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