The Board of Immigration Appeals (Board) has determined that “[a]bsent a showing of prejudice on account of ineffective assistance of counsel, or a showing that clearly undermines the validity and finality of the finding, it is inappropriate for the Board to favorably exercise our discretion to reopen a case and vacate an Immigration Judge’s frivolousness finding.”
“Based upon the record presented, we are not persuaded that the filing deadline should be equitably tolled because the respondent was prejudiced by the ineffective assistance of her second counsel resulting from the appellate brief he filed in 2005. Although the respondent has substantially complied with the procedural requirements for a claim of ineffective assistance of counsel as outlined in Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), she did not establish that the deficiency in the appellate brief filed was prejudicial to her case. The respondent’s previous counsel had already explicitly disputed the frivolousness finding on her Notice of Appeal (Form EOIR-26). Contrary to the respondent’s contention, this Board considered both the adverse credibility and frivolousness findings on the merits. Moreover, a third counsel filed a timely motion to reconsider, which again set forth numerous arguments contesting the adverse credibility finding, but the motion was denied. On these facts, we find no reasonable likelihood that the outcome of the respondent’s proceedings would have been different if counsel had challenged the frivolousness finding in the appellate brief he prepared and filed for the respondent.”
“Despite the various efforts of the three attorneys who represented the respondent, she has also not explained why she apparently made no inquiries regarding the frivolousness finding or took any steps to contest it between the years 2005 and 2019. This inaction for the nearly 14-year period between our administratively final order and the filing of her current motion demonstrates a lack of due diligence.”
The full text of Matter of H-Y-Z- can be found here: