Wednesday, May 31, 2006

Cooke: How To Reopen A Case When IJ Did Not Identify Apparent Eligibility For 212(h) Relief

Filed 05/31/06, No. 05-3191; Cooke v. Atty Gen USA; not precedential.

When an IJ fails to inform a respondent of potential relief that the person is apparently eligible for, the IJ arguably violates 8 CFR 1240.11 (formerly 240.11), which requires IJs to advise respondents of avenues of relief that the person is apparently eligible for. In this case, the IJ and respondent's counsel did not raise 212(h) relief and they lost before the IJ and with the BIA. Later, new counsel filed a motion to reopen based on ineffective assistance of counsel and the IJ's failure to alert them of apparent eligiblity for 212(h) relief. Because the BIA did not address the issue of apparent eligibility (skipping ahead to whether ultimate relief seemed likely), the Third Circuit remanded for further proceedings.


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