Jose J. Padilla-Padilla Guadalupe D. Padilla-Enriquez Adela Enriquez v. Alberto R. Gonzales, Attorney General

Based on advice of counsel, the Padillas filed an application for asylum shortly before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA” or “Act”). After the Act’s effective date, the former Immigration and Naturalization Service (“INS”) initiated removal proceedings against them. Because these proceedings were initiated after the Act’s effective date, a ten-year period of continuous presence in the United States was required to qualify for relief from removal rather than the seven-year period that had previously been required to qualify for relief from deportation. The Padillas could not satisfy the ten-year period.

The immigration judge (“IJ”) denied the Padillas’ application for asylum, and granted them a period of 60 days within which to depart voluntarily, after which an order of removal would be entered if they had not departed. In a “streamlined” order, the Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ, but reduced the voluntary departure period to 30 days. The Padillas moved to reopen before the BIA based on ineffective assistance of counsel. The BIA denied the motion.

We have two consolidated…