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attorneyhearingmotionliens
attorneyhearingmotionliens

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Lo v. Ashcroft

Facts

The petitioners, husband and wife, arrived in the United States in 1985 and have two minor children who are U.S. citizens. They were notified of their removal due to Mr. Lo's failure to leave the U.S. when required. They retained an attorney, but due to erroneous information from the attorney's secretary regarding their hearing date, they failed to appear at the scheduled removal hearing. The IJ ordered their removal in absentia, leading to their motions to reopen being filed based on claims of ineffective assistance of counsel.

The petitioners, husband and wife, arrived in the United States in 1985 and have two minor children who are U.S. citizens. They were notified of their removal due to Mr. Lo's failure to leave the U.S. when required. They retained an attorney, but due to erroneous information from the attorney's secretary regarding their hearing date, they failed to appear at the scheduled removal hearing. The IJ ordered their removal in absentia, leading to their motions to reopen being filed based on claims of ineffective assistance of counsel.

Issue

Did the petitioners' failure to attend their removal hearing constitute 'exceptional circumstances' that warranted reopening their case?

Did the petitioners' failure to attend their removal hearing constitute 'exceptional circumstances' that warranted reopening their case?

Rule

An in absentia removal order shall be rescinded if the alien demonstrates that he failed to appear because of 'exceptional circumstances.'

An in absentia removal order shall be rescinded if the alien demonstrates that he failed to appear because of 'exceptional circumstances.'

Analysis

The court concluded that the petitioners' failure to attend their removal hearing was due to ineffective assistance of counsel, which constituted an 'exceptional circumstance' under the law. The court noted that the petitioners had complied with the procedural requirements for claiming ineffective assistance of counsel and that their attorney's mistake was not a result of collusion. The court found substantial evidence supporting their application for discretionary relief from removal.

The court concluded that the petitioners' failure to attend their removal hearing was due to ineffective assistance of counsel, which constituted an 'exceptional circumstance' under the law. The court noted that the petitioners had complied with the procedural requirements for claiming ineffective assistance of counsel and that their attorney's mistake was not a result of collusion. The court found substantial evidence supporting their application for discretionary relief from removal.

Conclusion

The denial of the aliens' motions to reopen was reversed and remanded for further proceedings.

The denial of the aliens' motions to reopen was reversed and remanded for further proceedings.

Who won?

The petitioners prevailed because the court found that their attorney's ineffective assistance constituted exceptional circumstances warranting the reopening of their case.

The petitioners prevailed because the court found that their attorney's ineffective assistance constituted exceptional circumstances warranting the reopening of their case.

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