BIA Holds That, Absent A Showing Of Prejudice On Account Of Ineffective Assistance Of Counsel, Or A Showing That Clearly Undermines The Validity And Finality Of The Finding, It Is Inappropriate For The Board To Favorably Exercise Its Discretion To Reopen A Case And Vacate An Immigration Judge’s Frivolousness Finding.
On November 13, 2020, the Board of Immigration Appeals (BIA or Board) denied a Respondent’s 2nd motion to reopen, effectively denying her applications for asylum and related relief and ordering her removed. In proceedings before the Immigration Judge (IJ), Respondent had applied for relief but the IJ found her testimony was not credible, determining that “critical elements” of her asylum claim were deliberately fabricated, as required for a frivolous finding under 8 C.F.R. §1208.20. Respondent’s first attorney timely appealed, alleging the frivolousness finding to be error. Her second lawyer prepared and filed the appellate brief, which failed to mention the frivolous application findings; that appeal was dismissed by the BIA, which affirmed the IJ’s conclusions that Respondent lacked credibility and had filed a frivolous asylum claim. A third attorney filed a petition for a review of the Board’s decision with the Third Circuit Court of Appeals, which ultimately upheld the BIA but, while the petition was pending, the same lawyer filed a motion to reconsider and reopen with the Board based on the mistranslation of a foreign document entered into the record by the IJ; the BIA denied the motion, a decision that was not appealed. A fourth lawyer then filed a 2nd motion to reopen 14 years later, seeking to overcome the statutory bar of the frivolous finding of INA §208(d)(6), as Respondent also sought to reopen based on the fact that her husband had filed a petition to accord her derivative U visa status.
The Board began its analysis by reciting 3 rules: 1) The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision; 2) to sustain one’s burden on reopening, the movant must establish that the ultimate relief would be merited as a matter of discretion, and 3) motions to reopen are disfavored and strict limits are enforced in removal proceedings “where every delay works to the advantage” of one in the U.S. unlawfully who wishes to remain.
The decision next noted that Respondent’s attempt to overcome the statutory bar of §208(d)(6) was based on the contention that the IJ “habitually made erroneous frivolous findings in asylum cases like hers,” an impediment she could not overcome on appeal “due to her second attorney’s ineffective assistance of counsel in the preparation and filing of her appellate brief.” And, while a claim of ineffective assistance may properly constitute grounds for reopening, where the motion is untimely, ineffective assistance can only serve as the basis for a motion to reopen “if it is substantiated and accompanied by a showing of due diligence.” Additionally, found the BIA, its own sua sponte authority to reopen or reconsider is “limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations.”
Further, reminded the opinion, a finding that an asylum application is frivolous forever bars the applicant from any benefit under §208(d)(6), essentially a “death sentence” for an asylum-seeker’s hopes of “securing permanent, lawful residence in the United States.” This is consistent with the motion to reopen regulation [8 C.F.R. §1003.23(b)(4)(i)], which states that if an asylum application was denied due to a frivolous finding, the applicant is ineligible to file for reopening or reconsideration. Because Respondent’s frivolousness finding had been upheld by both the Board and the Third Circuit, held the BIA, it is final and §208(d)(6) renders her ineligible for relief. The decision then concluded that absent a showing of prejudice on account of ineffective assistance or one that “clearly undermines the validity and finality of the finding,” it is inappropriate for the Board to favorably exercise its discretion to reopen a case and vacate the IJ’s frivolous finding; otherwise, cases could be reopened for the sole protection of avoiding the statutory bar.
Applying §208(d)(6) here, the BIA concluded that the IJ’s finding became final when the Board dismissed Respondent’s appeal; she had constructive and actual notice at that point that she would be “statutorily barred from receiving any immigration benefit at the time her husband filed” a derivative U visa petition for her nine years later. She, therefore, failed to show prima facie eligibility for U status.
Nor did Respondent’s motion demonstrate an exceptional situation warranting the exercise of the Board’s discretionary authority to reopen proceedings; here, she sought to reopen based on equities acquired “while she remained illegally in the United States after being ordered removed.” The decision stated that equities established in this way “generally do not constitute such truly exceptional circumstances as to warrant discretionary reopening.” Further, the BIA did not consider Respondent’s claim of ineffective assistance to be a valid basis for reopening proceedings and vacating the frivolousness finding. The Board was not persuaded, per this record, that the filing deadline should be equitably tolled because Respondent had been prejudiced by her attorney’s ineffective assistance in filing the appellate brief. In fact, the decision found, there is no reasonable likelihood the outcome of these proceedings would have been different if counsel had challenged the frivolous finding in his brief.
Lastly, stated the opinion, Respondent had never explained “why she apparently made no inquiries regarding the frivolousness finding or took any steps to contest it” for 14 years, demonstrating a lack of due diligence. As her 1st motion to reopen gave Respondent a “fair opportunity to allege any impropriety in regard to her application for asylum,” the Board was unpersuaded that the time and number bars should now be equitably tolled on the basis of a claim of ineffective assistance. The motion to reopen was thus denied. Matter of H-Y-Z-, 28 I&N Dec. 156 (BIA 2020).