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Keywords

attorneylawyernegligenceappealmotionasylumliens

settlementattorneyappealmotionasylumliens

Related Cases

Gordillo v. Holder

Facts

Josue R. Gordillo and Leslie M. Castellanos, a married couple from Guatemala, entered the United States without inspection in the early 1990s. They applied for asylum and withholding of removal, but their attorney failed to cite the relevant provision of the Nicaraguan Adjustment and Central American Relief Act (NACARA) during their removal proceedings. After learning of their eligibility for relief and the attorney's negligence, they sought to reopen their case, but the BIA denied their motion, prompting them to appeal.

Castellanos first entered the United States in January 1990, apparently without inspection, to study hotel and business administration at a college in Ohio. Gordillo entered the United States without inspection on June 18, 1990. Meanwhile, in January 1991, the Attorney General entered into a settlement agreement providing certain benefits to Guatemalan asylum applicants. See American Baptist Churches v. Thornburgh (ABC), 760 F. Supp. 796 (N.D. Cal. 1991).

Issue

Whether the Board of Immigration Appeals abused its discretion in denying the aliens' motion to reopen their case based on ineffective assistance of counsel and the timeliness of the motion.

Rule

The time for filing a motion to reopen can be equitably tolled if the alien demonstrates ineffective assistance of counsel and that they were diligent in pursuing their rights.

"[T]he time for filing a motion to reopen can be equitably tolled[.]" Harchenko , 379 F.3d at 410. This doctrine "may be applied to permit reopening when the alien demonstrates that she received ineffective assistance of counsel and was prejudiced thereby." Mezo v. Holder , 615 F.3d 616, 620 (6th Cir. 2010).

Analysis

The court found that the BIA's reasoning for denying the motion to reopen was flawed, particularly regarding the diligence of the aliens in seeking new counsel after learning of their attorney's ineffectiveness. The court noted that the couple had made reasonable efforts to consult other lawyers and that the mere passage of time did not negate their diligence. The court emphasized that the BIA had not adequately considered the couple's circumstances and the impact of their attorney's failure to inform them of their eligibility for relief.

We hold that they were diligent. Contrary to the government's [**14] arguments before us, the mere passage of timeeven a lot of timebefore an alien files a motion to reopen does not necessarily mean she was not diligent. See Pervaiz v. Gonzales , 405 F.3d 488, 490 (7th Cir. 2005) (Posner, J.) ( "[T]he test for equitable tolling, both generally and in the immigration context, is not the length of the delay . . . ; it is whether the claimant could reasonably have been expected to have filed earlier").

Conclusion

The court vacated the orders of the BIA and remanded the cases for further proceedings, allowing the aliens to pursue their claims for relief under NACARA.

We vacate and remand.

Who won?

The petitioners, Josue R. Gordillo and Leslie M. Castellanos, prevailed because the court found that the BIA had abused its discretion in denying their motion to reopen based on ineffective assistance of counsel.

The Board abused its discretion in concluding that Castellanos was not diligent in the period between July 2004 and August 2008.

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