Luisa Rojas-Lopez v. Eric H. Holder Jr.

MEMORANDUM

Luisa Rojas-Lopez, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying her motion to reopen the removal proceedings against her. Rojas-Lopez’s motion to reopen raised two independent grounds: (1) that Rojas-Lopez had received ineffective assistance of counsel during her initial appeal to the BIA, and (2) that material, previously unavailable evidence warranted a new hearing before the Immigration Judge (IJ) on the issue of hardship to Rojas-Lopez’s U.S.citizen children. We grant the petition as to the first ground and retain jurisdiction over the second.

The government asserts that the ineffective assistance of privately retained counsel in immigration proceedings cannot form the basis of a due process violation, and that our prior decisions have merely assumed the existence of such a due process right. This argument is baseless. For nearly three decades, we have recognized that the ineffective assistance of counsel may violate due process when it renders immigration proceedings “so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 1015, 1017…