CA11 on Ineffective Assistance: Sow v. Barr

Sow v. Barr

"Hamid Sow, a citizen of Guinea, seeks review of the Board of Immigration Appeals’ (BIA) denial of his motion to remand based upon ineffective assistance of counsel and motion to reopen based upon new evidence. After careful review and with the benefit of oral argument, we conclude that the BIA abused its discretion in denying Sow’s motion to remand based on ineffective assistance of counsel. We therefore grant Sow’s petition for review, vacate the BIA’s decisions, and remand to the BIA with instructions to remand to the IJ for reconsideration of Sow’s asylum application. ... We therefore do not need to speculate as to whether the outcome may have been different if [attorney] Gurian had performed adequately. The IJ’s uniquely direct statement confirms that it would have. Because the IJ explicitly said that he would have granted Sow’s application but for the evidentiary inconsistencies, we have no trouble concluding that there is a reasonable probability that the outcome of Sow’s merits hearing would have been different with adequate assistance of counsel. See id. at 1274. Accordingly, we grant Sow’s petition, vacate the BIA’s decision, and remand to the BIA with instructions to remand to the IJ for reconsideration of Sow’s asylum application. PETITION GRANTED."

[Hats off to Keren Zwick, of the National Immigrant Justice Center, and Adele El-Khouri, Elaine Goldenberg and Jeremy S. Kreisberg of Munger, Tolles & Olsen!]