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The 5th Cir. finds ineffective assistance of counsel meets the "exceptional circumstances" standard

Murillo-Robles v. Lynch, No. 15-2568 (1st Cir., Oct. 7, 2016) is a case involving the “exceptional circumstances” rescission of an in absentia (with notice) order of removal and provides a study in attorney apathy and incompetence.

Murillo-Robles entered the U.S. as an eleven-year old, having been petitioned by his stepfather. Two years later he applied to remove conditions from his residency. Then the circus began. His first attorney failed to respond to a request for evidence from USCIS and the application to remove conditions was denied. He was then placed into removal proceedings and requested continuances to adjudicate a second I-751. That petition was denied because the attorney did not explain the delay in filing. The attorney was subsequently disbarred.

Murillo-Robles hired a new attorney to represent him at his merits hearing. As a result of confusion, Murillo-Robles arrived a half an hour late and an in absentia order was entered. The attorney never informed the judge that the client was on his way. The immigration judge entered an order of removal but told the attorney to file a motion to reopen. The attorney later took the client’s money to file the motion to reopen and failed to file the motion. This second attorney was subsequently suspended from practice.

A third attorney filed a motion to reopen which was denied by the IJ and the BIA and appealed to the First Circuit Court of Appeals,

The issue on appeal was whether the Board abused its discretion in determining that ineffective assistance of counsel in this case was not an “exceptional circumstance” under INA 240(b)(5)(C)(i). Importantly, the term “exceptional circumstances” is defined by the code at INA 240(e)(1) as “battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances…beyond the control of the alien.”

The court noted that “exceptional circumstances” is a “totality of the circumstances” determination, taking into account among other things the strength of the alien’s underlying claim and the harm the alien would suffer if the motion is denied.

In applying this test, the court first found that the second attorney’s failure to advise the judge that the client was on his way, and the attorney’s failure to file the motion, both constituted serious ineffective assistance of counsel. Second, the Court found that the BIA abused its discretion in failing to distinguish between total failure to appear and a tardy appearance. The BIA was also required to give weight to the fact that the client had, until that moment, pursued his case diligently and made timely appearances at all his other immigration hearings. The Board should also have taken into consideration the prior counsel’s ineffectiveness in bungling petitions to remove conditions from permanent residency. Given the totality of the circumstances, the Board abused its discretion in failing to reopen.

Commentary: This case is an excellent example of ineffective assistance of counsel constituting “exceptional circumstances” for the 180 day motion to reopen. Essentially, this is a reaffirmation that bad lawyering can be equivalent to “serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances.” One odd facet of the case is that the petitioner’s motion to reopen appears not to have been filed anywhere close to the 180 day deadline, since his in absentia removal order was in 2012 and his motion to reopen was in 2015. The court explains in a footnote that this delay was because he was incarcerated for a drunk-driving related conviction, and it appears the Board applied equitable tolling and treated the motion as timely (it is unclear why), despite ultimately denying the motion.

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