Rosas Hernandez v. Holder
412 F. App'x 155
10th Cir.2011Background
- Rosas Hernandez and Rosas petition for review of two BIA decisions denying motions to reopen and to reconsider
- They entered the U.S. without inspection in 1988 and sought cancellation of removal in 1999; hearing held in 2005
- At the hearing, they withdrew their cancellation applications in exchange for voluntary departure and a 120-day departure window
- New counsel later claimed prior counsel’s ineffective assistance; the BIA dismissed for lack of jurisdiction based on appeal waiver
- They filed a motion to reopen alleging ineffective assistance; the BIA relied on Compean I to deny relief until Compean II changed the standard
- BIA 2010 decision denied reconsideration and reopening, applying the new standard; petitioners challenge due process and evidentiary handling under pre- and post-Compean II standards
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly applied Compean II's prejudice standard | Rosas contends BIA used the incorrect standard from Compean I | BIA acknowledged Compean II and found prejudice not shown under the updated standard | Yes; BIA adequately applied the Compean II standard and found no prejudice |
| Whether the ineffectiveness claim violated due process by preventing a hearing | Rosales assert a fundamentally unfair hearing due to ineffective assistance | Record shows they had notice and opportunity to present their case despite counsel flaws | No; no prejudice shown to deny due process protection |
| Whether the BIA properly considered new and pertinent evidence in reopening/reconsideration | Rosases claim new evidence should have been considered to show hardship | BIA considered the new evidence; concluded it did not establish hardship or prejudice | Yes; BIA did not abuse discretion in evaluating evidence and denying relief |
Key Cases Cited
- In re Compean, 24 I. & N. Dec. 710 (A.G. 2009) (pre-Compean I standards applied; later superseded by Compean II for prejudice)
- In re Compean, 25 I. & N. Dec. 1 (A.G. 2009) (Compean II; guidance on prejudice standard for ineffective assistance)
- Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004) (prejudice defined as reasonable likelihood of relief)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (abuse-of-discretion review of motion to reopen/reconsider)
- Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) (due process rights and ability to present evidence)
- Alzainati v. Holder, 568 F.3d 844 (10th Cir. 2009) (due process in considering new evidence in reopenings)
- Osei v. INS, 305 F.3d 1205 (10th Cir. 2002) (prejudice standard for ineffective assistance)