Avagyan v. Holder
2011 U.S. App. LEXIS 13393
| 9th Cir. | 2011Background
- Avagyan, a 71-year-old Turkmenistan native and Armenian citizen, overstayed a visitor visa and sought asylum in 2001; removal proceedings began in 2002.
- She retained Spence (an attorney) and Martinez (a notario) in 2002; Spence did not meaningfully prepare her asylum case.
- An IJ denied asylum in 2003 and ordered removal; Avagyan appealed and later relied on Gevorg (believed to be an attorney) to file a potential adjustment of status petition.
- BIA denied the appeal in 2005 without explicitly informing Avagyan of a final order; her counsel later advised that she must await visa petition approval before pursuing adjustment.
- In 2006 Avagyan, after learning from current counsel that prior counsel were ineffective, filed a motion to reopen based on ineffective assistance of counsel; BIA denied as untimely due to lack of due diligence.
- The Ninth Circuit granted the petition in part, remanding for adjudication on the adjustment-of-status ground, and affirmed in part on the asylum-related ground; Judge Callahan dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling applies to late motions to reopen based on ineffective counsel | Avagyan relied on prior counsel; her delay was caused by deception/error | Wallace/Lawrence limit tolling; no constitutional right to counsel in removal | Equitable tolling may apply; Holland supports tolling even without a right to counsel but limited to exceptional circumstances. |
| Whether Avagyan acted with due diligence regarding asylum-ground claim | She relied on prior counsel’s preparation and timely sought relief after denial | Delay after denial shows lack of due diligence | BIA did not abuse discretion; asylum-ground motion untimely due to lack of diligence. |
| Whether Avagyan acted with due diligence regarding adjustment-of-status claim | After current counsel reviewed the file, she acted promptly within 90 days | Delay until discovery of ineffectiveness; not timely | BIA abused its discretion; motion timely for adjustment-ground; remand for merits. |
Key Cases Cited
- Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006) (ineffective assistance can trigger due-process tolling in deportation proceedings)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (establishes due-diligence standard for tolling based on deception or error)
- Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir. 2007) (accepts petitioner's affidavit at face value for motion to reopen; evaluates diligence fact-intensively)
- Lozada v. INS, N/A (BIA 1988) ( Lozada requirements for ineffective-assistance-based reopenings (affidavit, notice, response))
- Holland v. Florida, 130 S. Ct. 2549 (2010) (equitable tolling can apply for professional-m misconduct; not limited to right to counsel)