Ahir v. Lynch
13-4031
| 2d Cir. | Dec 6, 2016Background
- Petitioner Raxaben Ahir, an Indian national, sought review of the BIA’s Sept. 27, 2013 decision affirming an IJ’s July 30, 2012 denial of her motion to rescind an in absentia exclusion order and, alternatively, to reopen removal proceedings.
- Ahir alleged ineffective assistance of counsel caused her failure to appear at a December 11, 1995 hearing and filed a declaration with her motion to reopen describing counsel’s representation.
- The BIA denied the motion to reopen, holding Ahir failed to show the person she named actually represented her, and denied the motion to rescind as time‑barred under a 180‑day rule.
- The Second Circuit reviewed the IJ and BIA decisions for abuse of discretion and examined whether the BIA erred in its factual and legal conclusions.
- The Court concluded the BIA abused its discretion in finding Ahir presented no evidence of counsel’s representation, but held Ahir failed to exhaust administrative remedies on the separate issue of whether the rescission motion was time‑barred.
Issues
| Issue | Ahir's Argument | Lynch's Argument | Held |
|---|---|---|---|
| Did BIA abuse discretion in denying motion to reopen for ineffective assistance of counsel? | Ahir argued she submitted a declaration alleging her attorney represented her and that counsel’s ineffectiveness excused her absence. | Government argued Ahir did not present evidence that the alleged person actually represented her. | Court: BIA abused its discretion — Ahir’s declaration did allege representation; reopen denial vacated. |
| Was the motion to rescind the in absentia exclusion order time‑barred under a 180‑day rule? | Ahir contended the motion should be considered on its merits (and that she had reasons for failing to appear). | BIA treated motion as subject to 180‑day limit and denied as untimely. | Court: BIA applied incorrect standard (no 180‑day limit), but Ahir failed to exhaust the issue, so Court did not reach merits. |
| Did agency consider "reasonable cause" for failure to appear? | Ahir argued reasonable cause should be assessed. | Government relied on timeliness determination without addressing reasonable cause. | Court: Agency never considered reasonable cause; issue unexhausted and not addressed by the Court. |
| Should the petition for review be granted? | Ahir sought reversal of BIA denials. | Government sought to uphold BIA decisions. | Court: Petition GRANTED in part (reopen issue) and DENIED in part (rescission/timeliness unreviewed due to exhaustion). |
Key Cases Cited
- Zaman v. Mukasey, 514 F.3d 233 (2d Cir. 2008) (court reviews IJ and BIA decisions for completeness)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (standard of review for denial of motion to reopen: abuse of discretion)
- Waldron v. INS, 17 F.3d 511 (2d Cir. 1994) (addressing timeliness and related defenses in removal proceedings)
- Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (exhaustion requirement for administrative issues)
- Foster v. INS, 376 F.3d 75 (2d Cir. 2004) (issues not raised administratively are generally waived)
- Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) (court treats insufficiently argued issues as waived)