The Ninth Circuit has determined that the Board of Immigration Appeals’ power to consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after a final order of removal had been entered includes the power to review deficient performance that occurs before a different tribunal, including the Ninth Circuit. “Given this longstanding precedent, the Board acted arbitrarily when it denied Li’s motion to reopen on the sole basis that Li’s claimed ineffective assistance occurred before a ‘different tribunal.’”
“If the Board believed it had no discretion to review ineffective assistance claims based on conduct before a different tribunal, then the agency abused its discretion. If the Board instead believed that Li should have sought relief in the Ninth Circuit after the petition had been dismissed, it does not explain how that would comport with its own procedural requirements under Matter of Lozada, which insists upon such issues being raised before the Board in the first instance. Finally, if the Board harbored concerns grounded in the separation-of-powers doctrine—a topic it did not raise in its decision—it does not explain how those concerns manifest in Li’s case and not any of the cases that came before it. The dissent accuses us of requiring the Board to invoke the magic words ‘separation-of-powers’ in its decision. But it is not merely the Board’s failure to mention the doctrine; it is its failure to provide a reasoned explanation why an attorney’s failure to file an opening brief before the Ninth Circuit should implicate separation-of-powers concerns when the exact same thing happened in Lata and we explained that the petitioner should have first pursued relief with the Board.”
The full text of Li v. Bondi can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/10/18-70278.pdf