Flores v. Barr

Petitioner sought review of the BIA's order denying his untimely motion to reopen his removal proceedings. Petitioner alleged that he received ineffective assistance of counsel during his removal proceedings. The BIA agreed that petitioner's prior counsel performed deficiently, but denied the motion to reopen after concluding that he failed to show prejudice.The Ninth Circuit granted the petition for review with respect to petitioner's claims for deferral of removal under the Convention Against Torture (CAT) and relief under former 8 U.S.C. 212(c). The panel held that the BIA analyzed petitioner's new prejudice evidence under standards more stringent than were proper. Although the more-likely-than-not standard governs the merits of a CAT claim, in the context of a motion to reopen for ineffective assistance, the petitioner need not show that he would win or lose on any claims. Rather, the question with respect to prejudice is whether counsel's deficient performance may have affected the outcome of the proceedings, which means that the petitioner need only show plausible grounds for relief. The panel denied the petition for review with respect to all other claims and held that the BIA did not abuse its discretion in rejecting petitioner's claims. Accordingly, the panel remanded for further proceedings. View "Flores v. Barr" on Justia Law