Background
Luz Stella Buckley, a Colombian citizen, faced removal proceedings for overstaying a visa. She sought adjustment of status based on a family-based petition filed by her son. An immigration judge denied the application, citing serious criminal acts and a lack of remorse, despite dismissing charges from Tennessee and Massachusetts. Buckley’s attorney 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 then moved to reopen the appeal, alleging ineffective assistance of counsel.
The court’s reasoning
The court held that it lacks jurisdiction to review the denial of adjustment of status as it is committed to the Attorney General’s discretion. 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, and the failure to file a timely brief prevented Buckley from raising this substantial argument.
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 to reconsider the motion to reopen the appeal, allowing Buckley to present arguments regarding the immigration judge’s failure to develop the record.
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