Summary
The First Circuit denies Luz Stella Buckley's petition challenging the dismissal of her appeal from the denial of adjustment of status because her exhausted claim involved an unreviewable discretionary determination. The court grants her petition challenging the denial of reopening based on ineffective assistance of counsel, holding that the Board of Immigration Appeals did not adequately explain its Lozada ruling, prejudice determination, or conclusion regarding the omitted brief. The case is remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the First Circuit had jurisdiction to review Buckley's challenge to the immigration judge's discretionary denial of adjustment of status.
- Whether the BIA abused its discretion in denying Buckley's motion to reopen based on ineffective assistance of counsel.
- Whether Buckley demonstrated a reasonable probability of prejudice from counsel's failure to timely file a brief, including because the immigration judge failed to develop the record on matters central to the denial of adjustment of status.
Holdings
- The court lacked jurisdiction to review Buckley's exhausted claim challenging only the immigration judge's weighing of positive and negative equities in denying adjustment of status as a matter of discretion.
- The BIA abused its discretion in denying Buckley's motion to reopen because it failed to explain why she did not substantially comply with the Lozada requirements, inadequately addressed prejudice, and disregarded a substantial argument that the immigration judge failed to develop the record.
Key quotations
“For us to conduct a meaningful review of a BIA order, even for an abuse of discretion, "we must be able to discern why the agency made the decision that it did."” (11-12)
“If the IJ believed that other considerations about these charges were critical to her weighing the adjustment-of-status equities, it was incumbent upon her to ask Buckley about them before invoking these considerations to deny relief.” (15-16)
“In sum, Buckley has demonstrated that the BIA abused its discretion in denying her motion to reopen.” (18)
Factual background
Buckley, a Colombian citizen, entered the United States in 1989 and overstayed a tourist visa in 2005. She conceded removability and sought adjustment of status based on an approved family-based visa petition filed by her adult son. The immigration judge denied adjustment of status in part because of two dismissed criminal matters—a 1991 Tennessee shoplifting charge and 2009 Massachusetts assault-related charges—and relied on Buckley's alleged lack of remorse and failure to explain matters about which she had not been questioned at the hearing. Her attorney then failed to timely file a BIA brief.
Procedural history
The Department of Homeland Security initiated removal proceedings against Buckley in 2019. An immigration judge denied her application for adjustment of status in December 2022, finding that she was not entitled to a favorable exercise of discretion. Buckley's counsel filed a notice of appeal with the BIA but failed to timely file the promised brief; the BIA denied a motion to accept the late brief and later dismissed the appeal. The BIA then denied Buckley's motion to reopen based on ineffective assistance of counsel, prompting the two petitions for review.
Remand instructions
The court denied the petition challenging the BIA's dismissal of Buckley's adjustment-of-status appeal, granted the petition challenging the denial of the motion to reopen, and remanded for further proceedings consistent with the opinion.