Salazar-Gonzalez v. Lynch, No. 11-73600 (9th Cir. 2015)
Annotate this CasePetitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision that he was not entitled to tolling because he “failed to establish that his prior attorney engaged in ineffective assistance.” The court agreed with petitioner's argument that his lawyer’s bad advice caused him to forfeit his right to appeal the IJ’s denial of his application for cancellation of removal. The court concluded that petitioner has met the substantive requirement of demonstrating that his counsel performed deficiently and that he suffered prejudice as a result. Accordingly, petitioner is entitled to equitable tolling in the filing of his motion to reopen. The court granted the petition and remanded.
Court Description: Immigration. The panel granted Alfredo Salazar-Gonzalez’s petition for review of the Board of Immigration Appeals’ decision that he was not entitled to equitable tolling of his untimely motion to reopen on the basis of ineffective assistance of counsel. The panel held that a lawyer’s advice to an alien to forfeit his right of appeal to the BIA and leave the United States to apply for a visa for which he was statutorily ineligible was not a reasonable tactical decision. The panel held that the BIA abused its discretion by so characterizing counsel’s ?patently erroneous and legally dead wrong advice.” Concluding that petitioner was entitled to equitable tolling because he demonstrated that his counsel performed deficiently and he was prejudiced, the panel remanded with instructions to grant reopening.
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