Saturday, February 04, 2006

Ineffective Assistance Can Toll 180-day motion deadline (not precedential)

In Bejar v. Ashcroft, 324 F.3d 127, 131 (3d Cir. 2003), the Third Circuit explained that if a lawyer did an extremely ineffective job of representing someone, in some cases that can be an exceptional circumstance that allows the immigrant to file a motion to reopen more than the usual 180 day limit after the decision.

In the not-precedential decision of Nawaz v. Gonzales, No. 04-3411 (3d Cir. Feb. 2, 2006), the Third Circuit corrected the BIA and reaffirmed that a lawyer's extremely ineffective job of representation can be a basis to allow a motion to reconsider or reopen more than 180 days after the court's decision. In this case, the court mailed notice of a court date to the lawyer, but the lawyer is sure she never received it. When the immigrant did not show up in court, the court entered an in absentia deportation order. Three months after the decision, the immigrant's lawyer made a motion to reopen because she never got the court notice. Many months later (more than 180 days after the decision), the immigrant filed a motion for reconsideration and raised the issue of ineffective assistance of counsel. The Third Circuit explained that the BIA must analyze whether the late motion for reconsideration should be allowed because of extraordinary circumstances.


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