Jose Callejas v. Eric Holder, Jr.
534 F. App'x 386
6th Cir.2013Background
- Callejas, a native of El Salvador, entered the United States in 1989 without admission or parole and remained detained by removal proceedings since then.
- He sought NACARA special-rule cancellation in 2003 but USCIS denied due to lack of seven-year continuous presence; his asylum and NACARA claims were unresolved.
- Callejas’s first attorney conceded removability in 2006 and pursued NACARA and other relief; TPS issue was deemed not before the court.
- In 2007, the immigration judge denied all forms of relief; the BIA affirmed the denial in 2011 without addressing certain issues.
- New counsel filed a motion to reopen in 2011 based on ineffective assistance of the first attorney; the BIA denied, leading to the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| IAC claim under Lozada standard | Callejas asserts McAllister failed to pursue NACARA and TPS, prejudicing him. | McAllister’s omissions were not constitutionally deficient or prejudicial. | BIA did not abuse discretion; no prejudice shown for NACARA/TPS claims. |
| NACARA continuous presence and advanced parole | Advancing parole should excuse the 7-year continuous-presence requirement. | Advanced parole does not guarantee continuous presence for NACARA. | Advanced parole cannot excuse lapse; no NACARA eligibility shown. |
| TPS late filing and tolling | Equitable tolling could salvage late TPS filing due to ineffective assistance. | No timely TPS filing; no tolling justification shown. | TPS filing untimely; no tolling applicable. |
Key Cases Cited
- Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (requirements for an ineffective-assistance motion to reopen)
- Gordillo v. Holder, 640 F.3d 700 (6th Cir. 2011) (ineffective-assistance relief under NACARA; discretionary relief considerations)
- Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) (standards for reviewing BIA denial and IAC claims)
- INS v. Doherty, 502 U.S. 314 (1992) (review standard for BIA abuse of discretion)
- Matter of Garcia, 24 I. & N. Dec. 179 (BIA 2007) (accrual of physical presence for NACARA relief)
- Hernandez v. Holder, 457 F. App’x 487 (6th Cir. 2012) (equitable tolling in TPS context)
- Jones, 132 S. Ct. 945 (2012) (procedural default and forfeiture principles)
- Reda v. Mukasey, 294 F. App’x 182 (6th Cir. 2008) (IAC claims and discretionary relief)
- Dia v. Mukasey, 292 F. App’x 468 (6th Cir. 2008) (IAC effects on discretionary relief)