Background
Luz Stella Buckley, a Colombian citizen, sought adjustment of status in the United States based on a family-based visa petition filed by her adult son. An Immigration Judge denied the application, citing Buckley’s past criminal incidents and lack of remorse, despite dismissing the charges. Buckley’s counsel filed a notice of appeal to the Board of Immigration Appeals but failed to file a required brief. The Board denied a motion to accept a late brief and later dismissed the appeal. Buckley subsequently moved to reopen the appeal, alleging ineffective assistance of counsel for failing to file the brief.
The court’s reasoning
The court held that it lacks jurisdiction to review the denial of adjustment of status as it is a discretionary decision committed to the Attorney General. However, regarding the motion to reopen, the court found the Board abused its discretion. The Board provided no explanation for concluding Buckley failed to comply with the Lozada requirements for ineffective assistance claims. Furthermore, the court found a reasonable probability of prejudice because the Immigration Judge failed to develop the record on critical issues regarding Buckley’s criminal history, a statutory duty the Judge did not fulfill. The Board’s denial of the motion to reopen was arbitrary given these procedural flaws.
The BIA provided no explanation for its conclusion that Buckley failed to satisfy the procedural requirements for reopening an appeal based on ineffective assistance of counsel.
Opinion at 2
What it means going forward
The case is remanded to the Board of Immigration Appeals for further proceedings consistent with the court’s opinion, allowing Buckley to potentially have her adjustment of status appeal reconsidered with a properly developed record.
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