Original article by: Allissa Wickham

Law360, New York (June 15, 2015, 10:12 AM EDT) — A Mexican citizen whose former lawyer missed a key filing date in his removal appeal won a victory at the U.S. Supreme Court Monday, when the justices held that the Board of Immigration Appeals’ refusal to reopen his case is a reviewable decision.
The Supreme Court reversed a decision from the Fifth Circuit, which held that it didn’t have jurisdiction to review a BIA decision not to equitably toll Noel Reyes Mata’s bid to reopen his deportation case based on ineffective assistance of counsel. The court ruled 8-1, with Justice Elena Kagan authoring the opinion.

“[T]he court of appeals should have asserted jurisdiction over Mata’s appeal and addressed the equitable tolling question,” Kagan wrote.

The Fifth Circuit had ruled that an immigrant’s bid for equitable tolling based on bad lawyering was considered a request that the BIA use its discretion to reopen deportation proceedings, and because the court didn’t have any standard by which to judge such decisions, it couldn’t review them.

But the Supreme Court pointed out on Monday that under its 2010 decision in Kucana v. Holder, appeals courts have jurisdiction over the BIA’s rejections of motions to reopen removal proceedings. The high court said that “nothing changes” when the BIA declines a reopen request because it’s late.

“Under the Immigration and Nationality Act, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue,” Kagan wrote. “Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”

Although procedurally complicated, the ruling is due process win for vulnerable immigrants, who may not realize their attorneys messed up on bids to reopen cases until it’s too late, experts told Law360 in April.

The government began deportation proceedings against Mata in 2010, after he pled guilty to family assault for hitting a woman he was dating, according to court filings. He admitted he was deportable but sought cancellation of removal, which was denied.

Mata then took the case to the BIA, but his attorney failed to file any briefs, and the board dismissed his appeal. Eventually, Mata secured new lawyers and moved to reopen his deportation proceedings, but he did so 25 days after the official 90-day window to file a motion to reopen had closed.

The BIA deemed his motion untimely and declined to apply equitable tolling. The Fifth Circuit subsequently ruled in 2014 that it lacked jurisdiction to review the BIA’s decision not to reopen the case, saying an immigrant’s bid for equitable tolling based on ineffective counsel is an instance where the BIA can exercise discretion.

However, the Supreme Court said Monday that the appeals court didn’t lose jurisdiction over the BIA’s denial of Mata’s request just because the board also refused to reopen his case “sua sponte,” or on its own.

“That courts lack jurisdiction over one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the alien’s request),” Justice Kagan wrote. “It follows, as the night the day, that the court of appeals had jurisdiction over this case.”

Having found that the Fifth Circuit should have asserted jurisdiction over the appeal, and addressed the question of equitable tolling, the high court reversed the decision and remanded for further proceedings.

Justice Clarence Thomas filed a dissent, saying he would vacate the decision, and ask the Fifth Circuit to eye the BIA’s decision without what he perceived as a “categorical rule” requiring Mata’s motion to be characterized as a bid for sua sponte reopening.

Interestingly, both Mata and the U.S. Department of Justice argued that the decision should be reversed, with the government saying in its high court brief that the appeals court did have jurisdiction to review the BIA’s denial of Mata’s motion to reopen.

The Supreme Court therefore appointed Beck Redden LLP attorney William Peterson to step into the respondent’s shoes, who argued the 90-day deadline for filing motions to reopen is not subject to equitable tolling under the INA.

Mark Fleming of WilmerHale, who represented Mata, told Law360 on Monday that his team was very pleased with the ruling.

“We are delighted with the Supreme Court’s opinion, which correctly recognized the importance of the federal courts of appeals in reviewing BIA decisions in cases where a noncitizen was harmed by ineffective assistance of counsel,” Fleming said. “We are hopeful that the Fifth Circuit will now address our client’s appeal on the merits and will send the case back to the Board of Immigration Appeals.”

A representative for the U.S. Department of Justice did not immediately respond to a request for comment Monday.

Mata is represented by Mark C. Fleming, Sandy Alexander, Jason Hirsch, Claire Bergeron, Nicole Fontaine Dooley and Jeffrey Habenicht of WilmerHale, Raed Gonzalez, Naimeh Salem, Sheridan Green, Edwin Reyes, Gabriel Guzman and Bruce Godzina of Gonzalez Olivieri LLC, Brian K. Bates of Reina & Bates and Alexandre I. Afanassiev of Quan Law Group PLLC.

The government is represented by Donald B. Verrilli Jr., Joyce R. Branda, Edwin S. Kneedler, Anthony A. Yang, Donald E. Keener and Patrick J. Glen of the U.S. Department of Justice.

The case is Mata v. Lynch, case number 14-185, in the Supreme Court of the United States.