The Ninth Circuit has granted a petition for review filed by a Honduran family after the BIA denied their motion to reopen and reissue its prior decision affirming the denial of asylum, withholding of removal, and CAT protection. The family's former attorney did not read the BIA's emailed decision for months and failed to timely advise them of the thirty-day deadline to seek judicial review, causing them to miss it entirely.
The Court held that the BIA erred in concluding it lacked authority to consider an ineffective assistance claim based on counsel's failure to advise about proceedings before a different tribunal, reaffirming that the Board has long had discretion to consider such claims. The Court also held that mailing a courtesy copy of the decision directly to the family did not rebut the presumption of prejudice from counsel's error, since it was unreasonable to expect non-English-speaking petitioners with limited education to independently decipher the filing deadline. The case was remanded for the BIA to apply the presumption of prejudice and address the merits of the ineffective assistance claim.
The full text of Menjivar-Ayala v. Blanche can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/07/09/24-4562.pdf