Tang v. Ashcroft (2003)

“The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Tang, 354 F.3d at 1194 (quotation omitted).

Even if Ms. Lopez properly presented the issue for appellate review, her argument would still fail because the BIA’s decision confirms that the ineffective-assistance analysis was an independent basis for denying the motion to (continued) 5 motion to reopen, [Ms. Lopez] had to comply with the BIA’s requirements.” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003).

An alien “can state a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, he was denied a fundamentally fair proceeding.” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003) (internal quotation marks omitted) (brackets omitted).

As discussed above, however, he has failed to establish that he did not receive notice, so we need not address *696 whether lack of notice would satisfy his “difficult burden,” Tang, 354 F.3d at 1194 (internal quotation marks omitted).

An alien “can state a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, he was denied a fundamentally fair proceeding.” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003) (quotation and alteration omitted). 3 Analysis Mr. Krylov argues that the BIA abused its discretion in denying his second motion to reopen based on ineffective assistance of counsel because it provided no rational explanation for its decision and the decision …

See 8 U.S.C. § 1229a(b)(5)(C) (removal order issued in absentia may be rescinded upon motion to reopen, if alien demonstrates he did not receive proper notice of hearing or failure to appear was attributable to exceptional circumstances); 8 U.S.C. § 1229a(e)(l) (defining exceptional circumstances); Alanwoko v. Mukasey, 538 F.3d 908, 914 (8th Cir.2008) (standard of review); cf. Tang v. Ashcroft, 354 F.3d 1192, 1195-96 (10th Cir.2003) (submission of motion for change of venue …

“The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir. 2003) (internal quotation marks omitted).

Although an alien has no Sixth Amendment right to counsel in removal proceedings, he has “a Fifth Amendment right to a fundamentally fair proceeding.” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003).

Even if Ms. Geta-chew had filed a motion for change of venue, “the mere submission of a motion for change of venue does not excuse an alien’s failure to appear.” Tang v. Ashcroft, 354 F.3d 1192, 1195 (10th Cir. 2003) (internal quotation marks omitted).

“The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir. 2003) (internal quotation marks omitted).

Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003).

Ill “We review the BIA’s decision on a motion to reopen only for an abuse of discretion.” Gurung v. Ashcroft, 371 F.3d 718, 720 (10th Cir.2004) (brackets omitted) *838 (quoting Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003)) (internal quotation marks omitted).

Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003).

See, e.g., Contreras v. Att’y Gen., 665 F.3d 578, 584 (3d Cir.2012); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.2008); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.2007); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003); United States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003); Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999).

See Mickeviciute, 327 F.3d at 1161 n. 2 (requiring aggrieved party to meet all three of Lozada's requirements); cf. Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir.2003) (declining to decide whether substantial-compliance doctrine should be extended to Lozada).

See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir.2007); United States v. Perez, 330 F.3d 97, 101 (2d Cir.2003); Denko v. INS, 351 F.3d 717, 723-24 (6th Cir.2003); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir.2008); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003); Dakane v. Att’y Gen., 399 F.3d 1269, 1273-74 (11th Cir.2005).

To establish a Fifth Amendment violation, an alien must demonstrate not only that his counsel was ineffective, but also that as a result of his counsel’s ineffectiveness he was "denied a fundamentally fair proceeding.” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003). 7 .

Nothing in this definition requires a deprivation of constitutional magnitude, including when, as here, the allegations relate to an attorney’s performance. 5 As in the past, we will “as-sum[e] without deciding that an attorney’s deficient performance can amount to exceptional circumstances under § 1229a(e)(l) sufficient to reopen removal proceedings pursuant to § 1229a(b)(5)(C)(i).” Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003).

The [IJ] abuses [his] discretion when [his] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003) (quotation omitted).

The [IJ] abuses [his] discretion when [his] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir. 2003) (quotation omitted).

In Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir.2003), we assumed without deciding that "an attorney's deficient performance can amount to exceptional circumstances under § 1229a(e)(l) sufficient to reopen removal proceedings.

See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i); Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003) (stating that the alien bears the burden of establishing exceptional circumstances and that this is a difficult burden to meet).

Indeed, it is petitioner’s belated challenges, some made years after the events he testified to at the administrative proceedings, that underscore the need for adherence to the “high standard ... necessary ... [as] a basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board.” Lozada, 19 I. & N. Dec. at 639 ; see Mickeviciute v. INS, 327 F.3d 1159 , 1161 n. 2 (10th Cir.2003) (noting that motion based on claim of ineff…

We have found the BIA to abuse its discretion only when its decision provides “ ‘no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.’ ” Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003) (quoting Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003)).

“We have jurisdiction to review the BIA’s decision under 8 U.S.C. §§ 1252 and 1229a(b)(5)(D).” Tang v, Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003). “ ‘[W]e review the BIA’s decision on a motion to reopen [only] for an abuse of discretion.

See Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir.2003).

See Tang v. Ashcroft, 354 F.3d 1192, 1195 (10th Cir.2003).

See Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir. 2003) (declining to “decide whether substantial compliance [with Lozada] would be sufficient because [the petitioner] . . . made no attempt to comply with any of Lozada’s requirements”).

See Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) (observing that an ineffective-assistance claim in the immigration context requires deficient performance that denies the alien a fundamentally fair proceeding); United States v. Aguirre-Tello, 353 F.3d 1199, 1207-08 (10th Cir. 2004) (equating prejudice with a fundamentally unfair immigration proceeding).

See Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir. 2003), citing Gbaya v. U.S. Attorney Gen., 342 F.3d 1219 , 1222 n.2 (11th Cir. 2003) (stating that alien’s “fail[ure] to comply with at least two out of three Lozada requirements . . . would not be in substantial compliance with Lozada”), Hamid v. Ashcroft, 336 F.3d 465, 468-69 (6th Cir. 2003) (holding that alien’s failure to provide an affidavit and make a bar complaint precluded substantial compliance), and Xu Yong Lu…

See Tang v. Ashcroft, 354 F.3d 1192, 1196-97 (10th Cir.2003), citing Gbaya v. U.S. Attorney Gen., 342 F.3d 1219 , 1222 n. 2 (11th Cir.2003) (stating that alien’s “fail[ure] to comply with at least two out of three Lozada requirements ... would not be in substantial compliance with Lozada”), Hamid v. Ashcroft, 336 F.3d 465, 468-69 (6th Cir.2003) (holding that alien’s failure to provide an affidavit and make a bar complaint precluded substantial compliance), and Xu Yong Lu v. …

See Soberanas v. Comfort, 388 F.3d 1305 , 1308 n. 1 (10th Cir.2004), Tang v. Ashcroft, 354 F.3d 1192 , 1194 n. 3 (10th Cir.2003).

See Soberanes v. Comfort, 388 F.3d 1305 , 1308 n. 1 (10th Cir.2004), *1144 Tang v. Ashcroft, 354 F.3d 1192 , 1194 n. 3 (10th Cir.2003).

See Jian Jun Tang v. Ashcroft, 354 F.3d 1192, 1195 (10th Cir.2003) (refusing to excuse an alien’s failure to appear at a hearing where neither the alien nor his attorney “made arrangements with the Immigration Court to waive [his] attendance at the hearing or to attend the hearing telephonically”).

See Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir.2003).

See, e.g., Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); United States v. Loaisiga, 104 F.3d 484, 485 (1st Cir. 1997); Delgado-Corea v. INS, 804 F.2d 261, 262 (4th Cir. 1986); United States v. Cerda-Pena, 799 F.2d 1374 , 1376 n.2 (9th Cir. 1986).