Immigration Law Clinic Students File Petition for Writ of Certiorari

Professor Holly Cooper recently led a team of four UC Davis School of Law students in filing a Petition for Writ of Certiorari to the U.S. Supreme Court.  The petition was filed on Monday, April 5.  The students working on the case included Kim Le '11, Kelly Martin '11, Joanna Cuevas Ingram '12, and Jihan Kahssay '12.

The case, the title of which Professor Cooper and the clinic students are keeping confidential at their client's request, concerns the extent to which the Fifth Amendment Due Process Clause protects asylum seekers claiming ineffective assistance of counsel in removal proceedings and the need for the Supreme Court to establish a national standard to govern attorney performance in asylum proceedings.

The case features the following facts.  The female client was subjected to genital mutilation at infancy in her home country.  Over a decade ago, she came to the United States and unsuccessfully sought asylum based on fear of religious persecution.  About three years after the Board of Immigration Appeals affirmed the Immigration Judge's decision denying asylum, the client learned for the first time that female genital mutilation was a recognized ground for asylum.  She contacted the Immigration Law Clinic and, with the assistance of Professor Cooper, filed a motion to reopen her proceedings based on a claim of ineffective assistance and requested that the 90-day filing deadline be equitably tolled.  The Board of Immigration Appeals and U.S. Court of Appeals for the Ninth Circuit, however, declined to hold that prior counsel's failure to inquire amounted to ineffective assistance of counsel.  The BIA and Ninth Circuit also declined to apply the doctrine of equitable tolling to the client's case.

The Ninth Circuit proceedings resulted in dissents by Judge Betty Fletcher and Judge Harry Pregerson, supporting the Clinic client's case.  (Judge Pregerson dissented after the Ninth Circuit decided not to hear the case en banc; Judge Fletcher dissented from the Ninth Circuit's ruling on the case.) The Immigration Law Clinic students argued in the Petition for Writ of Certiorari that the prior attorneys' failure to inquire about and present a claim for asylum based on genital mutilation constituted ineffective assistance of counsel amounting to a Fifth Amendment due process violation.  Because immigrants in civil removal proceedings are not entitled to the Sixth Amendment right to counsel, the arguments at issue focus on the scope of the Fifth Amendment's due process protection against ineffective assistance in removal proceedings.

During the course of the early asylum proceedings, the client retained three attorneys, all of whom failed to inquire whether the client had ever undergone genital mutilation.  The attorneys were on notice, however, of a U.S. Department of State report in the record stating that nearly 90 percent of females from client's home country underwent genital mutilation.  In light of this indication in the record and established precedent at the time that female genital mutilation was a strong basis for an asylum claim, the students argued in the petition that their client's former attorneys should have known of the high probability that their client would be eligible for asylum because she had undergone genital mutilation.

The students argued alternatively that even if their client is unable to establish ineffective assistance of counsel, the 90-day deadline for motions to reopen should be equitably tolled to allow their client to present her claim for asylum based on female genital mutilation.

It will be a number of months before the students expect to hear from the Supreme Court.