Background
Three Honduran nationals (Petitioners) entered the United States in 2021 and sought asylum, withholding of removal, and Convention Against Torture protection based on violent threats against their family. The Immigration Judge denied all relief in 2021–2022. On December 19, 2023, the Board of Immigration Appeals affirmed the denial.
Their counsel, Jennifer Lesmez, failed to notify them of the BIA decision or the thirty-day deadline to file a petition for review in the Ninth Circuit. Lesmez did not read the BIA’s email until March 5, 2024—well after the appellate deadline had passed. Lesmez acknowledged responsibility for the error and withdrew as counsel.
Petitioners filed a motion to reopen, claiming ineffective assistance of counsel. The BIA denied the motion on two independent grounds: (1) it lacked authority to review ineffective assistance claims based on conduct before a different tribunal (the appellate court), and (2) Petitioners had sufficient notice because the BIA mailed them a courtesy copy of the decision.
The Court’s Holding
The Ninth Circuit held that the BIA abused its discretion on both grounds. First, relying on recent precedent in Li v. Bondi, 139 F.4th 1113 (9th Cir. 2025), the court held that the BIA has discretion to consider ineffective assistance claims involving conduct before a different tribunal. Counsel’s failure to notify Petitioners of a BIA decision and corresponding appellate deadline is grounds to seek reopening before the BIA. The BIA cannot avoid this responsibility by claiming it lacks authority simply because the alleged deficiency affected proceedings before the Ninth Circuit.
Second, the court held that service of a courtesy copy of the BIA’s decision on Petitioners was insufficient to rebut the presumption of prejudice from counsel’s deficient performance. It is unreasonable to expect noncitizens—especially those unfamiliar with English and immigration law’s complexity—to independently understand an adverse BIA decision and decipher filing deadlines without retained counsel’s guidance. When counsel’s error deprives a noncitizen of the right to appeal altogether, a presumption of prejudice applies, and the BIA must apply this presumption on remand.
Key Takeaways
- The BIA has authority to consider ineffective assistance claims based on counsel’s post-final-order conduct before other tribunals; it cannot dismiss such claims on jurisdictional grounds alone.
- Courtesy copies of decisions to clients do not substitute for counsel’s affirmative duty to notify and advise clients of appeal deadlines and the consequences of missing them.
- Noncitizens reasonably rely on retained counsel to navigate immigration proceedings; it is not reasonable to expect them to independently decrypt complex administrative decisions, particularly when they lack English proficiency or legal sophistication.
- When counsel’s error entirely strips a noncitizen of appellate review, the presumption of prejudice applies automatically, without need to prove actual prejudice.
Why It Matters
This decision reinforces that ineffective assistance of counsel claims cannot be sidestepped on procedural grounds. The BIA must meaningfully engage with IAC claims even when the alleged deficiency—here, failure to notify of an appeal deadline—occurred after the BIA’s final order but before appellate proceedings. The opinion clarifies that immigration practice’s complexity and noncitizens’ common reliance on counsel create a strong foundation for holding attorneys accountable when they fail to convey critical deadlines.
The ruling also reinforces a crucial protection: noncitizens cannot be deemed to have received adequate notice merely because a document was mailed to them if their attorney of record failed to explain its significance. This reflects immigration law’s realities—as the court noted, the “proliferation of immigration laws and regulations has aptly been called a labyrinth that only a lawyer could navigate.” Practitioners should note that when representing noncitizens, affirmative communication of adverse decisions and deadlines is essential; passive reliance on courtesy copies will not satisfy professional obligations.