22 Jan 2019

CA11 on Ineffective Assistance: Flores-Panameno v. US Atty. Gen.

"Elida Antonia Flores-Panameno petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of her appeal. In short, Flores-Panameno asserts she received ineffective assistance of counsel because her former attorney misled her into accepting voluntary departure by telling her she would immediately be deported if she did not accept it. She filed a motion to reopen on that basis. The immigration judge (“IJ”) denied that motion. He found her acceptance of voluntary departure was truly voluntary, despite the ineffective assistance of counsel, because he had himself gone through what he deemed to be appropriate procedures at the departure hearing to ensure that was so. We lack a transcript of the hearing in question, hampering our ability to decide this petition. We conclude Flores-Panameno bore the burden of producing any such transcript. Because she did not produce a transcript, we find that we may rely on the IJ’s reconstruction of the record. In this case, however, the IJ’s reconstruction may be incomplete. Accordingly, we are unable to assess fully Flores-Panameno’s voluntariness. We therefore grant the petition and remand to the BIA to determine the full scope of the IJ’s inquiry into voluntariness, as set forth in more detail below."

[Hats off to Jaime Jasso, now an Immigration Judge at the Imperial, CA court!]