PARKIN v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-22No. No. 10-73864

Summary · law.co

Holding. The petition for review is granted and the case is remanded to the Board of Immigration Appeals for further proceedings, as the Board abused its discretion by basing its diligence determination exclusively on the petitioners' inaction during representation by their third attorney.

Elvira Martin Parkin and her children, Philippine nationals, challenged the Board of Immigration Appeals' rejection of their request to reopen removal proceedings. They claimed their previous immigration attorneys provided ineffective legal assistance. The BIA had denied reopening based on its finding that the petitioners failed to show they acted with sufficient diligence—specifically, that they did not raise ineffective assistance claims while represented by a third attorney.

The court determined the BIA abused its discretion by relying solely on the petitioners' failure to raise claims during representation by their third attorney. Under applicable precedent, the failure of subsequent counsel to inform a client about prior counsel's inadequate performance does not defeat a showing of diligence. Accordingly, the court found the BIA's reasoning legally insufficient and returned the case for reconsideration on the proper legal standard.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether petitioners demonstrated due diligence in raising ineffective assistance of counsel claims
Whether a client's failure to raise ineffective assistance claims while represented by subsequent counsel defeats the diligence requirement
Proper standard for reopening removal proceedings based on ineffective assistance

Procedural posture

The petitioners sought court review of the Board of Immigration Appeals' denial of their motion to reopen removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Elvira Martin Parkin and her children, natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We grant the petition for review and we remand.

The BIA abused its discretion in determining that petitioners failed to demonstrate that they acted with due diligence in bringing ineffective assistance of counsel claims against their first two attorneys, where the BIA relied solely on the fact that petitioners did not bring these claims while they were represented by their third attorney. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (finding petitioner exercised due diligence even where third and fourth counsel did not inform petitioner that second counsel was ineffective). Thus, we grant the petition for review and remand to the agency for further proceedings consistent with this disposition. See id. at 1000-01; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

Petitioners’ request for oral argument, raised in their opening brief, is denied as moot.

Petitioners’ removal is stayed pending a decision by the Board of Immigration Appeals.

The government must bear the costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.