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Keywords

appealhearingaffidavitmotionasylumrescission
appealhearingaffidavitmotionasylumrescission

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Habchy v. Gonzales

Facts

Habchy entered the United States at the Miami International Airport in 2000, lacking proper documentation, and immediately requested asylum, claiming past persecution by Hizballah. He was ordered removed in absentia after failing to appear at his hearing, which his counsel attended. Afterward, he filed a pro se motion to reopen, claiming ineffective assistance of counsel for not notifying him of the hearing, but the IJ denied this motion on procedural grounds. Habchy later filed a second motion to reconsider, which was also denied as untimely.

Habchy entered the United States at the Miami International Airport in 2000, lacking proper documentation, and immediately requested asylum, claiming past persecution by Hizballah. He was ordered removed in absentia after failing to appear at his hearing, which his counsel attended. Afterward, he filed a pro se motion to reopen, claiming ineffective assistance of counsel for not notifying him of the hearing, but the IJ denied this motion on procedural grounds. Habchy later filed a second motion to reconsider, which was also denied as untimely.

Issue

Did the Board of Immigration Appeals abuse its discretion in denying Habchy's motions to reopen and reconsider based on ineffective assistance of counsel and changed country conditions?

Did the Board of Immigration Appeals abuse its discretion in denying Habchy's motions to reopen and reconsider based on ineffective assistance of counsel and changed country conditions?

Rule

Motions to reopen must state new, material facts; motions to reconsider must specify errors of fact or law in the prior decision. Ineffective assistance of counsel can constitute an 'exceptional circumstance' warranting rescission of an in absentia removal order, but the alien must follow proper procedures to prove these circumstances.

Motions to reopen must state new, material facts; motions to reconsider must specify errors of fact or law in the prior decision. Ineffective assistance of counsel can constitute an 'exceptional circumstance' warranting rescission of an in absentia removal order, but the alien must follow proper procedures to prove these circumstances.

Analysis

The court found that Habchy's initial motion to reopen was timely but did not meet the procedural requirements set forth in Matter of Lozada. The IJ noted that Habchy failed to provide an affidavit detailing the relevant facts and did not file a complaint with the bar association regarding his counsel's alleged ineffectiveness. The second motion to reconsider was deemed untimely, and the IJ's discretion in interpreting the motions was upheld.

The court found that Habchy's initial motion to reopen was timely but did not meet the procedural requirements set forth in Matter of Lozada. The IJ noted that Habchy failed to provide an affidavit detailing the relevant facts and did not file a complaint with the bar association regarding his counsel's alleged ineffectiveness. The second motion to reconsider was deemed untimely, and the IJ's discretion in interpreting the motions was upheld.

Conclusion

The court denied the petition for review, affirming the Board's decision that the IJ did not abuse his discretion in denying the motions.

The court denied the petition for review, affirming the Board's decision that the IJ did not abuse his discretion in denying the motions.

Who won?

Gonzales, as the court affirmed the Board's decision denying Habchy's motions.

Gonzales, as the court affirmed the Board's decision denying Habchy's motions.

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