Forteau (not precedential): Appointed Counsel Granted And BIA Must Give Chance To Participate

Forteau v. Holder
June 4, 2010
Not Precedential
http://www.ca3.uscourts.gov/opinarch/093421np.pdf

Judge McKee, Rendell, and Garth. Decision by Judge Rendell.

For Mr. Forteau, Steven A. Morley (argued) of Morley, Surin & Griffin in Philadelphia. For the government, Nancy E. Friedman (argued), Richard M. Evans, Andrew J. Oliveira.

Overturning the BIA in a case initially heard by IJ Andrew R. Arthur.

In an earlier appeal, the Third Circuit remanded the case to the BIA and ordered that the BIA arrange for appointed counsel if Mr. Forteau desired one. The BIA found appointed counsel but then ignored the appointed counsel and did not give him any opportunity to comment on the case. Instead of giving an opportunity to comment, the BIA instead ruled against Mr. Forteau without ever asking for input.

The Third Circuit overturned the BIA, under the common sense rule that when it demands that the BIA arrange for appointed counsel, the point is that the appointed counsel get an opportunity to be heard, not just to be sitting on the sidelines serving no purpose.

It is great that the Third Circuit is making strides in appointing counsel for indigent immigrants and to make sure the point of appointed counsel is upheld -- appointed counsel should have a chance to participate in a case. The BIA committed a serious due process violation. (Its error seems a bit farcical to an outside observer.)