Granados-Oseguera v. Mukasey (9th Cir., 10/7/08, No. 03-73030)

Per Curiam:  Fletcher, Tashima, Callahan

  The 9th Cir. withdrew its earlier 2006 decision, 464 F.3d 993, remanding this case to the BIA to reconsider its denial of petitioner's motion to reopen based on ineffective assistance of counsel and denied this Petition for Review.  The government here had filed a petition for rehearing based on its failure to tender a complete administrative record in the case and claimed the court's earlier decision premised on the incomplete record was incorrect.

  The BIA had affirmed the IJ's decision denying cancellation and granted petitioner voluntary departure of 30 days.  Peitioner's counsel filed a Motion to Reopen with the BIA 60 days after the expiration of the voluntary departure period. 

  1.  The 9th Cir. held that petitioner's claims were not moot due to an abandonment of the I-140 petition.

  2.  The 9th Cir. next held that the BIA's denial of the Motion to Reopen was not an abuse of discretion.  It upheld the BIA's three stated reasons for denying the MTR: (1) the IAC claim did not trump the statute's prohibition of discretionary relief if the petitioner overstays his voluntary departure period (the "exceptional circumstances" forgiveness being written out of the INA by IIRIRA); (2) petitioner's counsel had sought an extension of the VD from the wrong entitey and there was no basis to permit an untimely filing (counsel had to request an extension of the VD from the District Director, not INS officers); and, (3) petitioner had not shown, as required for a successful MTR, a prima facie case of eligibility for relief because there had been no I-485 AOS request filed to go along with the earlier filed I-140 from petitioner's employer.

  3.  Petitioner had also argued that his earlier counsel reassured that overstaying his VD would be excused and that counsel had failed to file the I-485 before or with the late filed MTR.

Read opinion here

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