In a rare federal appellate court victory, the Immigration Clinic won the ineffective assistance of counsel claim of a Honduran who fears torture in his home country. The case came to the clinic after the U.S. Court of Appeals for the 11th Circuit appointed clinic director Rebecca Sharpless to a petition for review, raising the client’s case for relief under the convention Against Torture. Upon reviewing the administrative record, the clinic realized that the client had received poor representation by his prior attorney. The clinic decided not only to file the requested brief to the 11th Circuit on the merits of his torture claim but to file a motion to reopen the case before the Board of Immigration Appeals based on the ineffective assistance of prior counsel. After the Board rejected the motion to reopen, the clinic filed a petition for review with the 11th Circuit. The court combined the two petitions for review and granted the petition raising the ineffective assistance of counsel claim.
Seven students worked on the case over three years: Amelia Daynes, J.D. ’20, Fernando Escobar, JD ’22, Hannah Gordon, J.D. ’20, Sara Hastings, J.D. ’21, Elanny Lago, J.D. ’22, David Mancia-Orellana, J.D. ’22, and Olivia Parise, J.D. ’21.
In 2019, under Sharpless’ direction, student Amelia Daynes prepared the original motion to reopen to the board. “I am thrilled that Mr. Perez will have another opportunity to be granted the relief he deserves,” said Daynes. “It was disheartening to review the deficient work and cursory arguments his former counsel presented to the immigration judge and Board of Immigration Appeals. After years of litigation, the 11th Circuit has agreed that these shortcomings prejudiced Mr. Perez’s case. This ruling validates the hard work contributed by many immigration clinic students. Most importantly, it vindicates Mr. Perez’s right to effective counsel.”
In the motion to reopen, the clinic argued that their client’s prior attorney acted ineffectively when he told the judge that he was obtaining corroborating evidence but failed to submit it. The attorney also failed to submit relevant country condition reports about Honduras as evidence. On appeal to the board, the attorney’s brief was rife with gross grammatical errors and irrelevant information, leading the board to conclude that the attorney had failed to “meaningfully challenge” the immigration judge’s determination. The performance of prior counsel was so deficient that, before the 11th Circuit, the government argued that the client had failed to exhaust his arguments before the board and therefore could not raise them to the court.
In March 2020, the board ruled on the motion to reopen based on the poor performance of prior counsel. The board agreed that prior counsel had rendered deficient performance but denied the motion to reopen on the ground that the client had not been prejudiced by the deficient performance. After the board denied the motion, the clinic sought review before the 11th Circuit and drafted the brief supporting the petition. Hannah Gordon prepared the petition for review and fought to keep the client in the country while his appeals case was pending. In the summer of 2020, Elanny Lago, J.D. ’22, drafted the brief in support of the petition for review under the supervision of former Associate Director of the Clinic, Romy Lerner. (Lerner is now an immigration judge at Krome Service Processing Center in Miami.) Students Sara Hastings and Olivia Parise drafted a reply brief in support of the petition for review in spring 2021.
In spring 2022, the court reversed the board’s decision that the client had failed to establish ineffective assistance of counsel case. The court summarized the poor performance of prior counsel, stating that “most” of the “three-page argument section” in the brief to the board “concerned a claim not relevant to this case.” The court said “[w]e agree” with the clinic’s argument that the Board “’ignore[d his] central argument’—that [prior counsel’s] failure to produce any corroborating evidence (or explain the lack of such evidence) led to the … merits denial.” The court noted that vacatur and remand are necessary when an agency decision “is so lacking in reasoned consideration and explanation that meaningful review is impossible.”
“It is truly rare for an appellate court to reverse a decision of the board, particularly a denial of a motion to reopen, said Sharpless. “The standard of review governing motions to reopen stacks the odds against clients. The reversal by the 11th Circuit reflects the high quality of the student lawyering in this case.”
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