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Keywords

lawyerappealhearingaffidavitmotiondeportation
lawyermotiondeportation

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Ghahremani v. Gonzales

Facts

Ghahremani is a native and citizen of Iran who first entered the United States on October 5, 1990, and adjusted his status to lawful permanent resident on August 31, 1995. He was convicted in 1996 of crimes that led to deportation proceedings against him. After several hearings, he was found removable due to his convictions. Following an unsuccessful appeal to the BIA, he filed a motion to reconsider, which was denied, and subsequently filed a motion to reopen, alleging ineffective assistance of counsel, which the BIA also denied as untimely.

Ghahremani is a native and citizen of Iran who first entered the United States on October 5, 1990, and adjusted his status to lawful permanent resident on August 31, 1995. He was convicted in 1996 of crimes that led to deportation proceedings against him.

Issue

Whether Ghahremani exercised due diligence in uncovering the alleged ineffective assistance of counsel that he had received, and whether the BIA abused its discretion in denying his motion to reopen as untimely.

Whether Ghahremani exercised due diligence in uncovering the alleged ineffective assistance of counsel that he had received, and whether the BIA abused its discretion in denying his motion to reopen as untimely.

Rule

Equitable tolling of deadlines is recognized during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.

Equitable tolling of deadlines is recognized during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.

Analysis

The court found that Ghahremani acted with due diligence in learning about his previous counsel's ineffectiveness. Despite engaging two other lawyers, he did not learn of the deficiencies in his representation until he met with new counsel. The BIA was obligated to accept the facts stated in Ghahremani's affidavit unless they were inherently unbelievable, and since the BIA did not find them so, the court accepted them as true.

The court found that Ghahremani acted with due diligence in learning about his previous counsel's ineffectiveness. Despite engaging two other lawyers, he did not learn of the deficiencies in his representation until he met with new counsel.

Conclusion

The court denied the petition for review of the denial of the motion for reconsideration but granted the petition for review of the motion to reopen, concluding that the BIA abused its discretion in denying the motion as untimely.

The court denied the petition for review of the denial of the motion for reconsideration but granted the petition for review of the motion to reopen, concluding that the BIA abused its discretion in denying the motion as untimely.

Who won?

Ghahremani prevailed in the motion to reopen because the court found that he acted with due diligence in uncovering the alleged ineffective assistance of counsel, which warranted equitable tolling of the filing deadline.

Ghahremani prevailed in the motion to reopen because the court found that he acted with due diligence in uncovering the alleged ineffective assistance of counsel, which warranted equitable tolling of the filing deadline.

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