922 F.3d 23
1st Cir.2019Background
- Franco-Ardon, a Guatemalan citizen, had an IJ deny asylum, withholding, and CAT relief; the BIA affirmed on January 18, 2012.
- He petitioned this Court for review (No. 12-1214) but the petition was dismissed on October 23, 2012 for failure to file a brief under local rules.
- Years later he sought several stays of removal; the last was denied in August 2017. New counsel then investigated and learned prior counsel had not filed the brief.
- On January 10, 2018 Franco-Ardon moved to reopen before the BIA, alleging ineffective assistance of prior counsel for failing to file the appellate brief.
- The BIA denied the motion (May 18, 2018), finding Franco-Ardon failed to show due diligence to excuse the delay and failed to show the requisite "likelihood of success" (i.e., prejudice) on the ineffective-assistance claim.
- Franco-Ardon petitioned this Court to review the BIA’s denial; the First Circuit denied the petition.
Issues
| Issue | Franco-Ardon's Argument | Barr/Government's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA denial of motion to reopen based on post-BIA ineffective assistance | Court can review BIA denial on the merits | Government contends jurisdiction is lacking because alleged IAC occurred after earlier BIA proceedings ended | Court assumed jurisdiction for purposes of decision and denied petition on merits |
| Whether BIA may require showing of prejudice/"likelihood of success" for IAC-based motion to reopen | Dearinger supports presuming prejudice when counsel’s IAC caused waiver of appeal; Franco-Ardon sought adoption of that rule | Government maintained BIA properly required a showing of prejudice; Dearinger is not controlling in First Circuit | Court declined to adopt Dearinger’s presumption of prejudice and upheld BIA’s requirement to show prejudice/likelihood of success |
| Whether out-of-circuit authority (Gjondrekaj) compels reopening when counsel waived appeal | Gjondrekaj allows motions to reopen for IAC waiver and suggests relief may be available | Government: Gjondrekaj doesn’t address required prejudice showing and is not controlling | Gjondrekaj is not controlling and does not undermine BIA’s prejudice requirement |
| Whether Franco-Ardon demonstrated prejudice (likelihood his original petition would have succeeded) | Asserted conclusorily that he had meritorious issues to raise | Government: record lacks proof of likely success absent waiver | Court found no record evidence of probable success and treated undeveloped assertions as waived; denial affirmed |
Key Cases Cited
- Morris v. Sessions, 891 F.3d 42 (1st Cir.) (assumption of jurisdiction to decide denial of motion to reopen)
- Dearinger v. Reno, 232 F.3d 1042 (9th Cir.) (presumption of prejudice where counsel’s IAC caused waiver of federal-court review)
- Hernandez v. Reno, 238 F.3d 50 (1st Cir.) (declining to extend per se prejudice presumption from criminal cases to waiver-denial context)
- Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir.) (discussing Dearinger as creating a rebuttable presumption of prejudice)
- United States v. Zannino, 895 F.2d 1 (1st Cir.) (arguments not developed on appeal are waived)