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jurisdictionlawyerappealmotioncompliancedue processimmigration lawdeportation
jurisdictionlawyerappealmotioncompliancedue processimmigration lawdeportation

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Guerra-Soto v. Ashcroft

Facts

On May 14, 1998, the government instituted removal proceedings against Guerra-Soto. In February 1999 she conceded removability and requested an opportunity to apply for cancellation of removal under 8 U.S.C. 1229b. The immigration judge (IJ) granted a continuance and gave her until April 19, 1999, to file an application for cancellation of removal. Guerra-Soto failed to file an application for cancellation of removal by the April 19 deadline. When the removal proceedings reconvened on May 23, 2000, the IJ noted the failure to file a timely application for cancellation of removal. Guerra-Soto's counsel asked that an application for suspension of deportation, filed in 1997, be construed as the application for cancellation of removal. The IJ denied the request, and held the failure to apply for cancellation of removal by the prescribed deadline constituted a waiver of the right to request cancellation. The IJ entered an order of removal, and granted Guerra-Soto's request to depart voluntarily by September 20, 2000.

On May 14, 1998, the government instituted removal proceedings against Guerra-Soto. In February 1999 she conceded removability and requested an opportunity to apply for cancellation of removal under 8 U.S.C. 1229b. The immigration judge (IJ) granted a continuance and gave her until April 19, 1999, to file an application for cancellation of removal. Guerra-Soto failed to file an application for cancellation of removal by the April 19 deadline. When the removal proceedings reconvened on May 23, 2000, the IJ noted the failure to file a timely application for cancellation of removal. Guerra-Soto's counsel asked that an application for suspension of deportation, filed in 1997, be construed as the application for cancellation of removal. The IJ denied the request, and held the failure to apply for cancellation of removal by the prescribed deadline constituted a waiver of the right to request cancellation. The IJ entered an order of removal, and granted Guerra-Soto's request to depart voluntarily by September 20, 2000.

Issue

Whether the BIA abused its discretion in denying Guerra-Soto's motion to reopen her case based on her failure to comply with the voluntary departure date.

Whether the BIA abused its discretion in denying Guerra-Soto's motion to reopen her case based on her failure to comply with the voluntary departure date.

Rule

Where an immigration lawyer's alleged ineffectiveness only touches upon the alien's chance to seek discretionary relief, the ineffectiveness does not result in a violation of due process rights because the alien has no constitutionally protected interest in seeking discretionary relief.

Where an immigration lawyer's alleged ineffectiveness only touches upon the alien's chance to seek discretionary relief, the ineffectiveness does not result in a violation of due process rights because the alien has no constitutionally protected interest in seeking discretionary relief.

Analysis

The court held that it had jurisdiction because Guerra-Soto did not seek review of the BIA's denial of discretionary relief. The BIA properly denied the motion to reopen because Guerra-Soto's first immigration lawyer's alleged ineffectiveness only touched upon her chance to seek discretionary relief, so the ineffectiveness did not result in a violation of due process rights. The court noted that Guerra-Soto's compliance with the voluntary departure date would have made her ineligible for cancellation of removal, thus her claim of being caught in a Catch-22 was unpersuasive.

The court held that it had jurisdiction because Guerra-Soto did not seek review of the BIA's denial of discretionary relief. The BIA properly denied the motion to reopen because Guerra-Soto's first immigration lawyer's alleged ineffectiveness only touched upon her chance to seek discretionary relief, so the ineffectiveness did not result in a violation of due process rights. The court noted that Guerra-Soto's compliance with the voluntary departure date would have made her ineligible for cancellation of removal, thus her claim of being caught in a Catch-22 was unpersuasive.

Conclusion

The court denied the alien's petition for review and affirmed the BIA's order.

The court denied the alien's petition for review and affirmed the BIA's order.

Who won?

The Board of Immigration Appeals (BIA) prevailed in the case because the court found that the BIA did not abuse its discretion in denying the motion to reopen.

The Board of Immigration Appeals (BIA) prevailed in the case because the court found that the BIA did not abuse its discretion in denying the motion to reopen.

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