Wednesday, November 13, 2013

Saakian v. INS case brief

Saakian v. INS case brief summary
252 F.3d 21 (2001)

Petitioner sought review of a decision of the Board of Immigration Appeals (BIA) affirming an order that he be deported following an in absentia hearing, contending that he was denied procedural due process when the BIA refused to hear his claim of ineffective assistance of counsel on the merits.

Petitioner failed to appear at a deportation hearing after he was advised by a non-attorney immigration counselor that it was not necessary for him to appear because of a pending motion to change venue. The immigration judge ordered petitioner deported in absentia, and denied subsequent requests for relief. Petitioner did not specifically allege ineffective assistance of counsel, but he alleged facts that could assert ineffective assistance.


  • His motion to reopen did not comply with the heightened Lozada requirements that the Immigration Court required to support an ineffective assistance claim. 
  • Petitioner subsequently obtained counsel and filed the Lozada materials in his appeal to the Board of Immigration Appeals. 
  • His appeal was denied, and the BIA refused to consider the ineffective assistance claim on the merits. 
  • The court reversed, finding BIA precedent for allowing a petitioner to supplement his claim and to have it heard on the merits as required for procedural due process.

The petition for review was granted and the matter remanded to the Board of Immigration Appeals for further proceedings. Petitioner was denied due process when he was not given a second opportunity to satisfy the Lozada requirements and have his ineffective assistance claim decided on the merits.

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