Juan Monjaraz-Munoz v. Immigration and Naturalization Service

In this petition for review from a decision of the Board of Immigration Appeals (BIA), we deal with the extent to which ineffective assistance of counsel may constitute “exceptional circumstances ... beyond the control of the alien,” 8 U.S.C. § 1229a(e)(l), requiring rescission of an in absentia deportation order and the reopening of immigration proceedings. Juan Monjaraz-Munoz (“Monjaraz”) was ordered deported in absentia after he did not appear at his deportation hearing. He filed a motion to reopen the proceedings before the BIA. Monjaraz claims that he did not appear at the hearing because he was advised by an agent of his attorney to cross the border into Mexico the day before the hearing. A panel of the BIA found that Monjaraz had complied with the procedural requirements for making out a case of ineffective assistance of counsel required by its decision in Matter of Lozada, 19 I. & N. Dec. 637 , 1988 WL 235454 (BIA), aff'd, 857 F.2d 10 (1st Cir.1988). The panel, with one Board Member dis senting, nevertheless held that Monjaraz’s reasons for not showing up at his hearing did not amount to “exceptional circumstances ... beyond the control of the alien.” 8 U.S.C. §…