Lara-Torres

Opinion by Judge WALLACE; Concurrence by Judge McKEOWN

Dagoberto Lara-Torres and Erika Lara-Perez (together Petitioners) timely petitioned for review of three Board of Immigration Appeals (Board) decisions which have since been consolidated before us. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and we deny the petitions.

*971 I.

Although the accuracy of the following account might be disputed, for this proceeding we portray the background facts as Petitioners do. Lara-Torres entered the United States from Mexico on June 2, 1988, without being admitted or paroled. Lara-Perez arrived on September 27 of the following year, also crossing into the United States without being admitted. The two, both natives and citizens of Mexico, were married in the United States and have a daughter with United States citizenship. They apparently concealed their illegal immigrant status from United States immigration officials until the following events unfolded.

In January of 1997, Lara-Torres found his way to the law office of Walter Pineda in search of immigration advice. When he inquired about his options for securing permanent legal residence in the United States, Pineda informed him…

concurring in the judgment.

I agree with the result reached by the majority, but cannot sign onto its reasoning without qualification. I would simply deny Lara-Torres’s petition on the ground that the BIA was correct to conclude that the original attorney committed a tactical miscalculation rather than ineffective assistance of counsel. I agree that the error here should be judged against the Due Process Clause of the Fifth Amendment. I write separately because I am unable to join the majority in its effort to forge new constitutional boundaries where resolution could be reached on much narrower grounds.

At the heart of my concern is the rigid temporal barrier the majority erects around what it calls “the actual process itself.” Under the thesis crafted by the *977 majority, due process claims akin to Lara-Torres’s are subject to a new threshold question: Were “the legal services [ ] rendered ... after a charging document was filed”? Maj. op. at 974 (emphasis in original). By fixating on the word “process” in “due process” and reducing it to its most technical meaning, see id., the majority elevates to paramount importance the initiation of a formal legal proceeding. So much of…