Fajardo v. INS, Ninth Circuit
In this case, the court ruled that regulations allowing late filing of motions to reopen deportation proceedings on the basis of ineffective assistance of counsel should be extended to situations where the immigrant was represented, but not by an attorney.
Normita Santo Domingo Fajardo, a citizen of the Philippines, entered the US as a visitor in 1989. She did not depart at the end of her authorized stay. In 1992, she filed an application for asylum through someone calling themselves an “immigration paralegal.” In 1993, the application was denied. The INS mailed a notice instituting deportation proceedings to the paralegal. Fajardo claims to have never been notified of either the denial of asylum or the deportation proceedings. In 1994, the INS ordered her deported. She learned of this only through an acquaintance. She contacted the paralegal, who offered to file a motion to reopen the deportation proceedings on the basis that Fajardo did not know of the hearing. The motion did not mention that it was because of the paralegal that Fajardo failed to appear at the hearing. An immigration judge denied the motion, finding that the failure to receive notice of the hearing was because of Fajardo’s failure to notify the INS of a change of address. She was then referred to another person, also not a lawyer, who offered to help her transfer her case and file an appeal. The appeal was denied as not timely filed, and Fajardo was ordered to report for deportation. She then contacted the attorneys who represented her before the Ninth Circuit.
These attorneys filed another motion to reopen, arguing that the misconduct of the two other people who represented her constituted exceptional circumstances that should toll the time limits on which motions. An immigration judge denied the motion, and was affirmed by the Board of Immigration Appeals. Fajardo then appealed to the Ninth Circuit.
INS regulations limit the number of motions to reopen that can be filed to one, and require it to be filed within 180 days of the entry of the deportation order. However, there are some exceptions, including one based on the ineffective assistance of counsel. Fajardo argued that although the two people who represented her were not attorneys, the same principle should apply in her case. The court agreed, finding that the refusal to grant the motion simply because they were not attorneys was clearly erroneous. Therefore, the case was remanded to the Board for a determination of whether the misconduct rose to the level of an exceptional circumstance allowing the late filing of a second motion to reopen.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0170599p.pdf.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.