Justices Told CA5 Is Solo On Immigration Appeal Stance: Mata v. Holder

"Several immigration organizations have filed amicus briefs in a Mexican man’s U.S. Supreme Court appeal of a Board of Immigration Appeals' dismissal of his deportation case — tossed after his lawyer missed a key filing deadline — saying the Fifth Circuit’s finding that it lacked jurisdiction was mistaken.

The American Immigration Council, the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild argued in their March 6 brief that compliance with the BIA’s requirements for establishing an ineffective assistance of counsel claim can be onerous and lengthy, which can sometimes make it impossible to file a motion to reopen based on ineffective assistance of counsel until long after the 90-day deadline.

The groups submitted example cases describing immigrants who received ineffective assistance of counsel, had their motions to reopen denied by the BIA for untimeliness, but were ultimately redeemed by circuit courts that — unlike the Fifth Circuit — recognized the applicability of equitable tolling to the immigrants' circumstances.

“To ensure that all courts guard against erroneous denials of reopening based on ineffective assistance of counsel or other extraordinary circumstances beyond their control, this court should end the Fifth Circuit’s outlier status in this vital precinct of immigration law,” the groups' brief stated.

The National Immigrant Justice Center filed its own amicus brief on March 5, saying the court should decide in the man's favor because equitable tolling determinations are not made under the BIA's residual or sua sponte reopening authority.

The immigration groups, along with the federal government, are challenging the Fifth Circuit's March rejection of Noel Reyes Mata's appeal of the BIA's refusal to reopen his case. The Supreme Court had granted Mata's certiorari petition last month, after the government in November urged the justices to take up Mata's case and vacate the appeals court's decision.

Mata faced removal from the U.S. following his September 2010 guilty plea for misdemeanor assault after "striking and grabbing a woman with whom he was having a 'dating relationship,'" according to court documents.

He sought to have his removal canceled, but an immigration judge denied the request in August 2011 on the grounds that Mata had committed a crime involving moral turpitude. The judge ordered him removed to Mexico.

Mata appealed to the BIA the following month, but his attorney failed to file a brief within a 90-day filing period, according to court documents. The board summarily dismissed Mata's appeal in September 2012.

The following month, Mata consulted with new attorneys and filed a motion with the BIA to reopen the case in January 2013, but the board denied that motion.

The BIA concluded that although Mata's motion was not timely filed, the time for filing a motion to reopen may be tolled in cases of ineffectiveness of counsel. However, in this case, the BIA rejected Mata's tolling request because he failed to establish that he was prejudiced by the alleged ineffectiveness of his counsel or that he was eligible for the cancellation of removal relief that he sought, according to court documents.

Last month, the high court granted Mata's certiorari petition on the question of whether the Fifth Circuit has jurisdiction to review the BIA's denial of Mata's request for equitable tolling of the 90-day deadline for filing his motion, on account of his counsel's conduct.

Mata's attorney Raed Gonzalez of Gonzalez Olivieri LLC told Law360 on Friday that the outcome is predictable when you have a 10-to-one circuit split.

“Either the [Supreme Court] changes the precedents in 10 circuits or joins the majority," Gonzalez said. "The case will change the law in our circuit. This decision will establish a precedent dictating uniformity in allowing foreigners to file to reopen their cases after they were victims of ineffective assistance of counsel and/or when there is a major changes in the law.”

Since the federal government agrees that the Fifth Circuit erred, the high court — in an unusual move — appointed attorney William Peterson to step into the respondent’s shoes. He told Law360 that he will be filing a full-length merits brief in defense of the judgment on March 30.

Peterson is appearing as an amicus curiae in support of the Fifth Circuit judgment, by invitation of the Supreme Court.

The AIC, AILA and NIP are represented by Beth J. Werlin of American Immigration Council, Trina Realmuto of National Immigration Project of the National Lawyers Guild, and Ira J. Kurzban and Edward F. Ramos of Kurzban Kurzban Weinger Tetzeli & Pratt PA. The NIJC is represented by Charles Roth of National Immigrant Justice Center.

Mata is represented by Raed Gonzalez, Naimeh Salem, Sheridan Green, Edwin Reyes, Gabriel Guzman and Bruce Godzina of Gonzalez Olivieri LLC, Brian K. Bates of Reina & Bates, and Alexandre I. Afanassiev of FosterQuan LLP.

The government is represented by Donald B. Verrilli Jr., Joyce R. Branda, Edwin S. Kneedler, Anthony A. Yang, Donald E. Keener and Patrick J. Glen of the U.S. Department of Justice.

The case is Mata v. Holder, case number 14-185, in the Supreme Court of the United States.

--Additional reporting by Brandon Lowrey and Vin Gurrieri. Editing by Edrienne Su." - Kelly Knaub, Law360, Mar. 13, 2015.