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Immigration Law

CA9 on Ineffective Assistance of Counsel, Equitable Tolling: Salazar-Gonzalez v. Lynch

"Sometimes, it is difficult to distinguish between a client’s bad luck and a lawyer’s bad advice. Risk is an inherent part of litigation, and lawyers must weigh countless probabilities when advising their clients on what claims to pursue, motions to file, and arguments to raise. This case, however, involves no dynamic assessment of risk: Salazar-Gonzalez’s lawyer advised him to pursue a form of immigration relief that Salazar-Gonzalez was statutorily ineligible to receive. Steering a client into such a dead-end is not a “tactical decision[],” as the Board of Immigration Appeals put it. It is ineffective assistance of counsel. Although we have observed that “[a] lawyer is often the only person who could thread the labyrinth” of the immigration laws, Castro-O’Ryan v. I.N.S., 847 F.2d 1307, 1312 (9th Cir. 1988), that observation breaks down when the lawyer does not know the way. We grant the petition and remand with instructions to grant the motion to reopen." - Salazar-Gonzalez v. Lynch, Aug. 20, 2015.  [Hats off to Carolyn Chapman!]

[Two questions: 1) Why did the government fight this? 2) Why did it take the Ninth Circuit four years to reach this decision? (The case was filed in 2011.)]