Gordillo v. Holder
640 F.3d 700
6th Cir.2011Background
- Gordillo and Castellanos, Guatemala natives, were eligible for NACARA relief (suspension of deportation) but did not obtain it because their lawyer did not cite NACARA during proceedings.
- Castellanos registered for settlement benefits in 1991, which later became a prerequisite for NACARA relief.
- Immigration Judge denied relief in 1999; Board of Immigration Appeals (BIA) affirmed in 2002 without opinion; petitioners did not learn of that decision until 2004.
- Hicks, their original attorney, did not notify them of the Board’s denial; the couple sought new counsel and later discovered systemic issues with Hicks’s representation.
- In 2008, after Hicks’s ineffectiveness came to light, Castellanos and Gordillo sought to reopen their case arguing equitable tolling for ineffective assistance; the Board denied as untimely.
- The Sixth Circuit vacated and remanded: Gordillo’s case remanded for proceedings consistent with the opinion; Castellanos’s motion to reopen remanded for reevaluation of diligence and tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred in denying NACARA relief due to ineffective assistance | Castellanos (and Gordillo) contend Hicks’s ineffective guidance violated due process and tolled time for reopening. | Government asserts Hicks’s conduct does not establish eligibility for tolling or relief; Board properly denied on merits and timeliness | Remanded; Board’s first reason deemed incorrect and case to proceed consistent with this opinion |
| Whether Castellanos’ late motion to reopen is equitably tolled for ineffective assistance | Castellanos shows diligent pursuit of counsel and discovery of ineffectiveness; delays were caused by counsel’s failures. | Castellanos was not diligent; delays were excessive and not justified by seeking further counsel. | Remanded to reconsider diligence and tolling on remand |
| Whether the Board lacked jurisdiction to reopen Gordillo after deportation | No statutory basis to deny reopening solely because alien left the country; jurisdiction can proceed on remand. | Board framed it as lacking jurisdiction under 8 C.F.R. § 1003.2(d); argued dismissal was appropriate. | Remanded; Board’s jurisdictional basis on moot grounds rejected |
Key Cases Cited
- Pruidze v. Holder, 632 F.3d 234 (6th Cir.2011) (Board cannot deprive motion to reopen due to prior deportation)
- Mezo v. Holder, 615 F.3d 616 (6th Cir.2010) (equitable tolling for ineffective assistance must consider diligence and prejudice)
- Harchenko v. INS, 379 F.3d 405 (6th Cir.2004) (equitable tolling for ineffective assistance in immigration proceedings)