(CN) - The U.S. Supreme Court agreed Friday to consider whether the 5th Circuit erred when it held it could not review a deportee's request to reopen his immigration case on the basis he'd received ineffective counsel.
Noel Reyes Mata, a citizen of Mexico, was ordered removed from the United States in 2010. He appealed the decision to the Board of Immigration Appeals, but saw his petition dismissed after his attorney failed to file an appellate brief.
Mata then filed an untimely motion to reopen his removal proceedings, based on a claim of ineffective assistance of counsel, and asking the board to equitably toll the applicable filing period or exercise its authority to reopen his proceedings.
The board denied Mata's motion, and later denied his subsequent motion to reconsider.
He then turned to the 5th Circuit. In his brief to the court, Mata acknowledged his motion to reopen was filed outside the 90-day filing period, after the board dismissed his original appeal. He maintained, however, that the board should have equitably tolled the filing period because it was his attorney's failures that deprived him of his right to appeal.
But a three-judge panel was unmoved by Mata's argument.
"In this circuit, an alien's request for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte," the panel held in an unsigned opinion. "As the BIA has complete discretion in determining whether to reopen sua sponte ... and we have no meaningful standard against which to judge that exercise of discretion, we lack jurisdiction to review such decisions."
The panel went on to say because it lacked jurisdiction over the central question Mata raised, it was unnecessary for it to weigh in on the merits of his equitable-tolling, ineffective assistance-of-counsel, and due-process claims.
As is their custom, the Justices offered no explanation for their granting of certiorari.
However, the decision by the 5th Circuit panel is at odds with rulings in 10 other circuit courts of appeals who have held they do have jurisdiction over denials by the Board of Immigration Appeals of requests to equitably toll motions to reopen.
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