Kavita Komal v. Eric Holder, Jr.

MEMORANDUM

In the 1990s, petitioners Kavita Komal (“Komal”) and her husband (both ethnic Indian, Fijian citizens) claimed race-based persecution by native Fijians and filed for asylum. Since then, petitioners have steadfastly sought administrative and judicial review over their denied applications for asylum. Their first Immigration Judge (“IJ”) denied asylum, in part because the IJ made an adverse credibility determination from inconsistencies in petitioners’ testimony surrounding the alleged rape of Komal by native Fijians and the injuries suffered by Komal’s husband at the hands of those rapists. The BIA affirmed, and this court denied the petition for review. The BIA then granted petitioners’ unopposed motion to reopen; a second IJ denied asylum; the BIA affirmed; and this court denied a second petition for review.

On July 22, 2010, nearly three and a half years after the BIA’s December 27, 2007 denial of petitioners’ second appeal, Komal and her husband filed their second motion to reopen, arguing that recent discovery of ineffective assistance of counsel by two attorneys should equitably toll the time limit for what would ordinarily be an untimely motion. Petitioners also…