LAKHA v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-27No. No. 19-71830

Summary · law.co

Holding. The petition for review was denied, and the Board of Immigration Appeals' order denying the motion to reopen removal proceedings was affirmed.

Bahadar Ram Lakha, an Indian citizen, sought review of the Board of Immigration Appeals' denial of his motion to reopen removal proceedings. Lakha filed his fifth motion to reopen, which was submitted after the applicable deadline. The court examined whether Lakha qualified for an exception to the time restrictions on reopening motions and found that he had not satisfied the necessary requirements.

Lakha advanced three separate arguments in support of reopening: that changed circumstances warranted reconsideration, that his former attorneys provided ineffective assistance, and that the immigration court lacked jurisdiction over his case. On each ground, the court determined that Lakha failed to meet his burden of proof. Specifically, he did not demonstrate prejudice from alleged attorney errors, and his jurisdictional challenge was precluded by existing precedent establishing that certain defects in initial notices could be remedied through later proceedings.

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

Key issues

Whether timely exceptions apply to bar motions to reopen removal proceedings filed beyond the deadline
Whether ineffective assistance of counsel claim establishes sufficient prejudice to warrant reopening
Whether alleged defects in the notice to appear deprive an immigration court of jurisdiction

Procedural posture

The petitioner sought judicial review of a Board of Immigration Appeals decision denying a motion to reopen removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Bahadar Ram Lakha, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.

The BIA did not abuse its discretion in denying Lakhas fifth untimely motion to reopen removal proceedings because Lakha failed to establish that he qualified for an exception to the time limitation for filing a motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (petitioner failed to establish a prima facie case for eligibility, where underlying adverse credibility determination rendered evidence of changed circumstances immaterial). We reject as unsupported by the record Lakhas contention that the BIA ignored evidence or otherwise erred in its analysis of his claim.

The BIA did not abuse its discretion in denying Lakhas motion to reopen based on ineffective assistance of counsel where he failed to establish prejudice from the allegedly deficient performance of his former attorneys. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (petitioner failed to establish prejudice where he presented no plausible grounds for relief).

The BIA did not abuse its discretion in denying Lakhas motion to reopen and terminate proceedings, where Lakhas contention that the immigration court lacked jurisdiction over his proceedings is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (omission of certain information from a notice to appear can be cured for jurisdictional purposes by later hearing notice).

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise denied.

PETITION FOR REVIEW DENIED.