Gwaduri

Gwaduri v. Immigration & Naturalization Service

Good Law
69 F. App'x 878
United States Court of Appeals for the Ninth CircuitJuly 10, 2003No. 02-70629; Agency Nos. A71-842-149, A71-842-148, A71-842-147California3,166 words

Opinion

Lead Opinion

MEMORANDUM *

I.

Muhammad Ghulamhaider Gwaduri is a citizen of Pakistan who, along with his family, has resided in the United States since 1990. 1 On appeal, Gwaduri seeks review of the Board of Immigration Appeal’s (“BIA”) denial of his motion to remand for a rehearing on his adjustment of status and voluntary departure claims on the grounds that he received ineffective assistance of counsel and that the Immigration Judge (“IJ”) did not properly consider all of the evidence. 2 On review, we find that the ineffective assistance received by petitioner requires a new hearing before an IJ on the issues of adjustment of status and voluntary departure; thus, we reverse the decision of the BIA and remand the case for further proceedings consistent with this decision.

II.

Jurisdiction

This case is governed by IIRIRA’s transitional rules. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). While Section 309(c)(4)(E) of IIRIRA deprives this court of jurisdiction to hear most discretionary decisions, it does not deprive us of jurisdiction to hear due process challenges to immigration decisions. Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001); Antonio-Cruz v. INS, 147 F.3d 1129,…

Dissenting Opinion

Scannlain, J.

dissenting.

OSCANNLAIN, Circuit Judge.

The court is correct that we retain jurisdiction to review due process challenges where the petitioner “ailege[s] at least a colorable constitutional violation.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir., 2001). “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985).

*884 In order to facilitate its consideration of ineffective assistance claims, the Board of Immigration Appeals has imposed the so-called “Lozada requirements,” which mandate that aliens advancing such a claim to provide the board with

Ontiveros-Lopez v. INS, 213 F.3d 1121, 1123 (9th Cir.2000). While it is undisputed that Gwaduri did not comply with the second and third of these requirements, the majority nevertheless holds that this a case in which “the facts are plain on the face of the administrative record,” and thus “the requirements of Lozada are not dispositive.” Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir.2003). I respectfully…

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