Jose Juan Martinez Barroso v. Alberto R. Gonzales, Attorney General

Jose Juan Martinez Barroso (“Barroso”) petitions this court for review of a Board of Immigration Appeals (“BIA”) order denying his motion to reconsider its previous denial of his appeal. Barroso’s motion to the BIA alleged ineffective assistance of counsel and the denial of Barroso’s right to counsel of his choice. The BIA denied Barroso’s ineffective assistance of counsel claim, but did not address his denial of counsel claim. In addition, the BIA denied Barroso relief because he had failed to depart within his voluntary departure period. We hold that where an alien files a timely motion to reconsider before his voluntary departure period has expired, his voluntary departure period is automatically tolled while he is awaiting a decision from the BIA on his motion. We also hold that the BIA abused its discretion in failing to address Barroso’s denial of counsel claim. Accordingly, we remand to the BIA for a determination of whether Barro-so was denied his statutory right to counsel of his choice.

I. BACKGROUND

Barroso is a native of Mexico who entered the United States in 1985. In 1998, he decided, in his words, to “put an end to his unregulated stay in the United States” and…