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Deportable aliens seeking to have their cases reopened after the statute of limitations has run can plead ineffective assistance of counsel, the 2nd U.S. Circuit Court of Appeals ruled Tuesday. In the first case of its kind to be heard in the Second Circuit, the court said that although Congress moved to sharply limit the reopening of asylum cases, it did not intend that poor lawyering would be allowed to prevent deportable aliens from getting a fair hearing in the immigration courts. “A motion to reopen immigration court proceedings traditionally has offered a vehicle to remedy cases in which ineffective assistance of counsel has resulted in the violation of an alien’s constitutional right to due process,” said Judge Sonia Sotomayor in Iavorski v. INS, 00-4086. “This is no less true today, even after Congress mandated limitations on the timing and number of such motions.” Nonetheless, the court declined to reopen the case of Russian immigrant Stanislav Iavorski because he waited two years to claim ineffective assistance of counsel. Iavorski entered the United States in 1995 on a tourist visa and almost immediately applied for political asylum. He claimed that after he was denied asylum in March 1996, his attorney promised to file an appeal, but never did so. Even though Iavorski was supposed to leave the United States, the Immigration and Naturalization Service never attempted to deport him. When Iavorski later applied for the State Department’s annual Diversity Visa Program, and was told he had won the “lottery” and could begin the process of becoming a permanent resident, Iavorski hired new counsel and sought to reopen his deportation case. An immigration judge denied the motion. Then the Board of Immigration Appeals rejected Iavorski’s claim that proceedings should be reopened based on ineffective assistance of counsel. The BIA ruled that only changed circumstances in the country to which the applicant is being deported can justify a motion to reopen or reapply for asylum. On appeal, Judge Sonia Sotomayor said the issue was the intent of Congress in passing amendments to the Immigration and Nationality Act in 1990. The amendments mandated that rules be tightened to prevent aliens from filing an unlimited number of motions to reopen a case or reconsider a ruling — a practice that, in effect, allowed deportable aliens to extend their stays in the United States for years. REGULATIONS REWRITTEN In 1996, new regulations were issued by the Department of Justice that with some exceptions limited aliens to only one application for rehearing filed within 90 days of the denial by an immigration judge or the BIA. But in reviewing the text and legislative history of the amendments, Sotomayor said, “we find no indication, either explicit or implicit, that Congress intended that this limitations period not be equitably tolled.” “Our conclusion is supported by the Department of Justice’s own interpretation of its rule making mandate from Congress, and the BIA’s view of the rules that were promulgated,” she said. “In the only other case to rule on this issue, the 9th Circuit arrived at the same result.” While Congress intended to “impose general limits on motions to reopen, these limits were not intended to be inflexible,” Sotomayor said, adding that Congress expressed a desire to provide for certain exceptions in the interests of justice. The INS had argued that because Congress had delegated to the Department of Justice the task of setting filing deadlines in the regulations, it had also delegated the determination of whether or not the deadlines were jurisdictional. But Sotomayor said that the INS offered no support for that claim. “In this case, the agencies charged with administering our immigration laws have offered no evidence whatsoever that Congress intended the limits on motions to reopen to establish a jurisdictional bar,” she said. “The government’s own interpretation of the statute, both in its administrative rule making and its discussion of the rule in other BIA case law, itself supports our conclusion that exceptional cases are not subject to the general limitations imposed on motions to reopen, and therefore such limitations are not jurisdictional.” LACK OF DUE DILIGENCE Nonetheless, the court went on to find that Iavorski had failed to exercise due diligence because he had waited two years before making his motion to reopen the case. Iavorski had never paid his former attorney the money to prosecute the appeal, Sotomayor said. The lawyer was, in fact, no longer an attorney, and Iavorski never made an effort to track him down and find out what had happened to the appeal, according to the court. Senior Judge Joseph M. McLaughlin and Judge Guido Calabresi joined in the opinion. Matthew L. Guadagno of Kerry William Bretz and Jules Coven, of Bretz & Coven, represented Iavorski from 1998 forward. Assistant U.S. Attorneys Heidi A. Wendel, Diogenes P. Kekatos and Gideon Schor represented the government.

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