Krylov v. Holder, Jr.
407 F. App'x 290
10th Cir.2011Background
- Krylov petitions for review of BIA denial of his second motion to reopen removal proceedings.
- He entered the U.S. as a Russian visitor in 2004, was denied asylum, and received voluntary departure by September 25, 2006; he did not appeal.
- First motion to reopen (Oct 25, 2006) relied on a 2006 marriage to a U.S. citizen but was filed after the voluntary-departure deadline and lacked bona fides evidence and an I-130 petition.
- IJ denied the first motion as late and inadequately supported; it also barred adjustment of status due to the late filing.
- Second motion to reopen based on ineffective assistance of counsel (Yuzefpolsky) was filed; DHS opposed, and the IJ denied per Velarde-Pacheco, without factual findings on communications.
- BIA affirmed the denial; this court remanded after Lamus-Pava held DHS opposition is not dispositive without merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in denying second motion to reopen. | Krylov alleges ineffective assistance and insufficient reasoning. | BIA relied on Velarde-Pacheco and found no timely, complete motion possible. | Remand for further findings ordered. |
| Whether the BIA adequately articulated findings on attorney's conduct and timeliness. | BIA failed to explain basis for insuperable difficulty and reliance on two-day gap. | BIA’s conclusion about timing was sufficient under Velarde-Pacheco. | Remand to develop facts and reasoning. |
| Whether Krylov was prejudiced by counsel's alleged deficiencies and due diligence | Counsel advised a timely, possible reopening and marriage-based relief; advice was flawed. | Nevertheless, counsel could not have filed a timely, complete motion. | Remand to assess prejudice and diligence. |
Key Cases Cited
- Dada v. Mukasey, 554 F.3d 1 (US 2008) (motion to reopen as a safeguard for lawful disposition)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (jurisdiction to review BIA discretionary denial of motion to reopen)
- Kucana v. Holder, 130 S. Ct. 827 (Supreme Court 2010) (regulatory basis for review despite 8 U.S.C. § 1252(a)(2)(B)(ii))
- Riley v. INS, 310 F.3d 1253 (10th Cir. 2002) (equitable tolling and due diligence in ineffective-assistance claims)
- Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (motion to reopen may be denied if DHS opposes)
- Lamus-Pava, 25 I. & N. Dec. 61 (BIA 2009) (DHS opposition not dispositive of merit; remand guidance)
- In re Compean, 25 I. & N. Dec. 1 (A.G. 2009) (agency guidance on pre-Compean standards for ineffective assistance)
- Orlando Ventura, 537 U.S. 12 (Supreme Court 2002) (remand for additional investigation or explanation)
- Tang v. Ashcroft, 354 F.3d 1190 (10th Cir. 2003) (requirements to prove ineffective assistance; Lozada framework)