Supreme Court Grants Certiorari and Remands to Fourth Circuit for Further Consideration of Ineffective Assistance of Counsel Claim

FROM INTERPRETER RELEASES:  On March 1, 2010, the U.S. Supreme Court granted the petitioners’ motion for leave to proceed in forma pauperis and the petition for a writ of certiorari in Machado v. Holder, No. 08-7721, which asserted that the U.S. Court of Appeals for the Fourth Circuit erred in denying a petition for review filed by a national of India averring that the Fourth Circuit erred in affirming the decision of the Board of Immigration Appeals (BIA or Board) denying the petitioner’s claim for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) and by finding that the petitioner’s motion to reopen on the basis of ineffective assistance of counsel was barred. The judgment below was vacated and the case remanded to the Fourth Circuit for further consideration in light of the position asserted by the Solicitor General Elena Kagan in her brief  for the respondent filed August 26, 2009. Machado v. Holder, 2010 WL 680738 (U.S. Mar. 1, 2010). In her brief, General Kagan stated that, although the court of appeals “correctly held that there is no constitutional right to effective assistance by privately retained counsel in removal proceedings,” the court apparently did not review the Board’s finding that the petitioners had failed to establish that their legal representatives’ performance was deficient for purposes of a nonconstitutional remedy. Accordingly, General Kagan urged the Supreme Court to vacate the court of appeals’ judgment and remand for the court of appeals to consider whether the Board erred in that respect. The majority of justices agreed without opinion; however, Chief Justice John G. Robert, Jr. filed a dissent, which was joined by Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr.

Click here for links to materials on the case.