Petitioner in ineffective assistance case obtains unanimous Seventh Circuit panel decision to remand case to Board of Immigration Appeals

Client(s) Client R

Jones Day successfully represented client R—a 44 year old native and citizen of Mexico who has lived in the United States for more than 25 years—in his petition to the Seventh Circuit Court of Appeals to review the Board of Immigration Appeals' denial of his motion to reopen his appeal asserting ineffective assistance of counsel. Client R is married to another Mexican citizen and national who lives in the United States with him and their three U.S.-citizen children aged nine, seven, and two and one-half years. Their youngest child has experienced developmental delays in his motor skills and has been prescribed therapy to address those delays.

Prior to Jones Day’s involvement, client R asked the Board to reopen its prior ruling denying him cancellation of removal on the ground that the attorney who represented him before the immigration judge deprived him of the effective assistance of counsel. Without reaching the question of whether client R's former counsel was, in fact, ineffective, the Board concluded that client R had failed to show that he was prejudiced by any shortcomings in his attorney’s performance, specifically stating it was “not persuaded that the evidence offered in support of [client R's] ineffective assistance of counsel claim would have likely altered the outcome of this case with regard to the hardship that would accrue to his children.”

When Jones Day took on the representation, client R was eligible for immediate deportation, and thus, the first task was to seek a stay of removal of client R pending resolution of his petition for review before the Seventh Circuit. Even though such motions are rarely granted, the Seventh Circuit granted the stay here in an opinion written by Judge Posner.

Jones Day then filed the petition for review, asserting two arguments: (1) that the Board assessed client R’s ineffective-assistance-of-counsel claim using the wrong legal standard as to the prejudice component of that claim; and (2) the Board engaged in such a cursory analysis of his ineffectiveness claim, devoid of reason and essentially ignoring the evidence he presented in support of that claim, that its decision amounts to an abuse of discretion. Jones Day argued the petition before a three-judge panel in December.

In a unanimous decision, the Seventh Circuit agreed with Jones Day’s first argument, noting that the petitioner “rightly put[] it, the standard as the Board articulated it is one of probability, when the correct standard as [the Seventh Circuit] ha[s] articulated is one of possibility.” Having agreed with the first argument, the court did not address the second. The court remanded the case to the Board for further proceedings consistent with the order.