The 2d cir joined the 1st and 9th in holding that even if minor would have been charged as a juvenile under federal law, treatment as adult under state law was dispositive. Although it stated that it lacked jurisdiction, it addressed his CAT and withholding claims, and denied the PfR rather than dismissing.
The 2d Cir found that it had jurisdiction to consider an ineffective assistance claim in a cancellation case, because it is at heart a constitutional claim. Denied on the merits without substantial discussion.
Walcott v. Chertoff (2d Cir. 2/19/08) (amended 2/28/08)
KEENAN (dct) Cardamone Pooler
The 2d Cir found that an alien´s ability to appeal a conviction post-AEDPA was not fatal to his ability to establish reliance on a Restrepo theory, that he failed to file a 212(c) claim earlier in reliance on continued existance of 212(c).
The 2nd Cir found that because the presumption of delivery of regular mail is slight, it is generally overcome where alien was eligible for relief, didn't appear, and swears that he or she never received notice.
We write today to establish what we would have thought self-evident: A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia (or the ramifications thereof) has provided ineffective assistance. We further clarify that such misadvice may constitute ineffective assistance of counsel even where it is supplied by a paralegal providing scheduling information on behalf of a lawyer.
Second Circuit 
