Reported / Citable
Background
Carlos Menjivar-Ayala, his wife Maria Ramirez-Chicas, and their son are Honduran nationals who entered the United States in 2021. They applied for asylum, withholding of removal, and protection under the Convention Against Torture, describing violent threats against their family. An immigration judge denied their applications, and on December 19, 2023, the Board of Immigration Appeals (BIA — the administrative appellate body for immigration cases) affirmed that denial.
Here is where the case went off the rails: the BIA notified the family’s attorney, Jennifer Lesmez, by email — but Lesmez did not read the email promptly. It was not until March 5, 2024, more than two months after the decision and well past the thirty-day deadline to file a petition for review with the Ninth Circuit, that Lesmez told her clients about the ruling. She acknowledged her error and withdrew. The family, now with new counsel, asked the BIA to reopen the proceedings and “reissue” its December 2023 decision so they could get a fresh thirty-day window to appeal — a recognized remedy for clients whose attorneys miss critical deadlines.
The BIA denied the motion on two grounds: (1) the attorney’s error occurred before a different tribunal (the Ninth Circuit filing deadline), so the BIA said it lacked authority to act; and (2) the BIA had mailed a courtesy copy of its decision directly to the family’s address, so they had sufficient notice regardless of their lawyer’s failure. The family petitioned the Ninth Circuit for review.
The Court’s Holding
A unanimous Ninth Circuit panel (Judge Paez, authoring, joined by Judges Fletcher and Desai) granted the petition and remanded. The court held on both grounds that the BIA abused its discretion.
On authority: The BIA was wrong to claim it cannot consider ineffective assistance of counsel (IAC) claims involving conduct that affected proceedings before a different court. The Ninth Circuit reaffirmed its 2025 holding in Li v. Bondi — the BIA has well-established discretion to hear IAC claims about post-final-order attorney conduct, including the failure to timely notify a client of filing deadlines in the court of appeals. The BIA does not have to grant such motions, but it must at least engage with them meaningfully. Its bare assertion that it could not “circumvent a congressionally imposed deadline” was not a legitimate reason to refuse.
On prejudice: Mailing a courtesy copy of the BIA decision to the family’s home address was not enough to rebut the presumption that the attorney’s failure prejudiced them. Represented immigrants are entitled to rely on their attorneys to explain decisions, deadlines, and consequences — especially noncitizens who do not speak English and have no legal training. Federal regulations themselves require that BIA decisions be served on counsel of record when a party is represented (8 C.F.R. §§ 1003.1(f), 1292.5(a)). The BIA’s suggestion that an unrepresented-style notice to the clients themselves was sufficient to break the chain of prejudice was legally erroneous.
Key Takeaways
- The BIA has authority to consider ineffective assistance of counsel claims arising from an attorney’s failure to notify a client of a BIA decision and the subsequent federal court filing deadline — even though those events occurred outside the BIA’s own proceedings.
- Sending a courtesy copy of a BIA decision to a represented noncitizen’s home address does not satisfy the service requirements or rebut IAC prejudice — when a party has counsel, formal service must go to counsel.
- Where an attorney’s error causes an immigrant to lose the right to appeal altogether, a presumption of prejudice applies and the BIA must address that presumption, not sidestep it.
- Immigration attorneys who fail to timely notify clients of BIA decisions can expose their clients — and themselves — to serious consequences; rigorous calendaring and prompt client communication after any BIA email notification are essential.
- This decision follows and reinforces Li v. Bondi (9th Cir. 2025) — practitioners should expect the BIA to be required to entertain reopening motions in similar situations across the circuit.
Why It Matters
For the many California-based immigration practitioners whose clients go through the BIA before reaching the Ninth Circuit, this decision clarifies a critical safety valve: when an attorney’s negligence after a BIA ruling strips an immigrant of any chance to appeal, the BIA cannot simply wash its hands of the matter by pointing to a different tribunal. The BIA must engage with the IAC claim and apply the correct legal framework — including the presumption of prejudice where the right to appeal is entirely lost.
Practically, the ruling reinforces the importance of robust intake and notification systems in immigration law offices. BIA email notifications about decisions can arrive quietly; attorneys who fail to act within thirty days cost their clients what may be their last chance at judicial review. This case also serves as a reminder to represented clients: if you receive mail directly from the BIA about a decision, contact your attorney immediately, even if you cannot read the document — that mailing may set a clock running that your attorney does not yet know about.