FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ISRAEL SANCHEZ ROSALES; MA 

ANTONIA MARTINEZ HERNANDEZ 

SANCHEZ, AKA Maria Antonia 

Hernandez Sanchez,

Petitioners,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-70666

Agency Nos.

A205-552-109

A205-552-110

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 13, 2020*

Pasadena, California

Filed November 18, 2020

Before: Kim McLane Wardlaw and Lawrence VanDyke, 

Circuit Judges, and Jennifer Choe-Groves,** Judge.

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Jennifer Choe-Groves, Judge for the United States 

Court of International Trade, sitting by designation.
2 SANCHEZ ROSALES V. BARR

Opinion by Judge Choe-Groves;

Dubitante Opinion by Judge VanDyke

SUMMARY***

Immigration

The panel granted a petition for review of the Board of 

Immigration Appeals’ decision denying a motion to reopen 

filed by Israel Sanchez Rosales and Maria Antonia Martinez 

Hernandez Sanchez, and remanded, concluding that, under 

circuit precedent, a showing of prejudice is not required 

when ineffective assistance of counsel leads to an in absentia 

order of removal.

Petitioners were ordered removed in absentia in 2014. 

The BIA denied their first motion to reopen, which had 

averred that Israel had been told by the immigration court 

that Petitioners’ hearing was not on the court’s calendar. 

Although this motion to reopen and the subsequent appeal 

appeared to have been prepared pro se, petitioners later 

repeatedly asserted that the documents were prepared by a 

non-attorney notario named Carlos Lewis. In 2017, 

Petitioners filed their second motion to reopen, claiming that 

Lewis instructed them not to attend their hearing before the 

immigration judge. The BIA denied the motion.

The panel concluded that the BIA erred by denying the 

motion on the ground that the denial of Petitioners’ first 

*** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SANCHEZ ROSALES V. BARR 3

motion to reopen had been “legally correct.” The panel 

explained that Lewis’ ineffective assistance had not yet been 

disclosed when the agency decided the first motion to 

reopen, and therefore, relying solely on the previous decision 

impermissibly ignored the central argument of the second 

motion. 

The panel next concluded that the BIA erred in denying 

the motion on the ground that Petitioners had not shown that 

“they were prejudiced by ineffective assistance or fraud.” 

The panel explained that, in Lo v. Ashcroft, 341 F.3d 934 

(9th Cir. 2003), the court concluded that the BIA does not 

normally require a showing of prejudice when a motion for 

rescission of an in absentia removal order is grounded on 

ineffective counsel. Accordingly, the panel remanded to the 

BIA to evaluate Petitioners’ motion without requiring a 

showing of prejudice.

Dubitante, Judge VanDyke agreed that circuit precedent 

compelled the result in this case, but wrote separately 

because he concluded that that precedent is silly and well 

illustrates the court’s nasty habit of muddying immigration 

law and holding the BIA to stilted standards to which this 

court would never subject itself. Judge VanDyke wrote that 

the circuit’s immigration jurisprudence is a hot mess, sharply 

at odds with the text and purposes of immigration law, and 

regularly ignores the important difference between the 

BIA’s direct appellate role versus this court’s indirect and 

supposedly deferential role on review. Further, Judge 

VanDyke concluded that the “no-prejudice-in-a-motion-toreopen-based-on-ineffective-assistance” rule was devoid of 

any rationale, writing that there is no reason why a petitioner 

attempting to claim ineffective assistance of counsel should 

not need to show prejudice, which is a mainstay of 
4 SANCHEZ ROSALES V. BARR

ineffective assistance claims under the Fifth Amendment’s 

Due Process Clause.

COUNSEL

Mitzi Cardenas, Los Angeles Immigration Attorneys, Los 

Angeles, California, for Petitioners.

Kathleen Kelly Volkert, Trial Attorney; Anthony C. Payne, 

Assistant Director; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

CHOE-GROVES, Judge:

Israel Sanchez Rosales and Maria Antonia Martinez 

Hernandez Sanchez, natives and citizens of Mexico, petition 

for review of an order of the Board of Immigration Appeals

(“BIA”) denying their second motion to reopen. That 

motion has two parts: First, Petitioners contend that 

ineffective assistance of a non-attorney notario who advised 

them not to attend their hearing caused them to be ordered 

removed in absentia. Second, Petitioners seek to have their 

case reopened so that they can apply for cancellation of 

removal based on the hardship their removal would cause to 

their two U.S. citizen sons.

We conclude that the BIA erred by treating Petitioners’ 

failure to show prejudice caused by the alleged ineffective 

assistance as a basis for denying their motion to reopen 

proceedings. A showing of prejudice is not required when 
SANCHEZ ROSALES V. BARR 5

ineffective assistance leads to an in absentia order of 

removal. See Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 

2003) (citing In re Rivera-Claros, 21 I. & N. Dec. 599, 603 

n.1 (BIA 1996)); see also Monjaraz-Munoz v. INS, 327 F.3d 

892, 897 (9th Cir. 2003), amended by 339 F.3d 1012 (9th 

Cir. 2003).

In light of this conclusion, we need not reach the BIA’s 

decision denying Petitioners’ motion to reopen proceedings 

to allow Petitioners to apply for cancellation of removal.

I.

A.

Petitioners arrived in the United States in approximately 

2000. They have two U.S. citizen sons, ages thirteen and 

fifteen, one of which suffers from developmental disabilities 

necessitating medication and special education. Petitioners 

sought immigration assistance from a non-attorney notario 

named Carlos Lewis, who told them that because of their 

long residency in the United States and their son’s 

challenges, it would be easy to obtain green cards. 

According to Petitioners, Lewis prepared and submitted an 

asylum application on their behalf without their 

authorization.

Petitioners received notices to appear, including 

instructions concerning their scheduled hearing before an 

immigration judge. The instructions warned Petitioners that 

if they failed to appear for their hearing, they could be 

ordered removed. Petitioners claim that despite those 

instructions, Lewis advised them not to attend the hearing. 

They failed to appear and were ordered removed in absentia 

on March 26, 2014.
6 SANCHEZ ROSALES V. BARR

B.

Petitioners filed their timely first motion to reopen on 

April 7, 2014. This first motion to reopen does not include 

the claim that Lewis advised Petitioners not to attend their 

hearing, but instead avers that Israel had contacted the 

immigration court over the course of several days to ask 

where he and Maria should go for their hearing and had been 

told that the hearing was not on the court’s calendar.

The immigration judge denied the first motion to reopen 

because Petitioners acknowledged receiving their notices to 

appear but nonetheless failed to explain “why, after so much 

alleged diligence in attempting to ascertain information 

about their case, they simply neglected to appear on the date 

their case was scheduled, notwithstanding having received 

clear notice of their obligation to appear in their [notices to 

appear].”

Petitioners appealed that order to the BIA and repeated 

the claim that Israel had attempted to call the immigration 

court to obtain details about the hearing, but did not mention 

Lewis’ advice that Petitioners should not attend the hearing. 

The BIA affirmed the immigration judge’s ruling and 

dismissed the appeal on August 27, 2015.

Petitioners filed a timely petition for review in this court 

on September 14, 2015. Petitioners’ current counsel filed a 

notice of appearance in that matter on December 16, 2015. 

However, Petitioners failed to file their opening brief and the 

petition was dismissed for failure to prosecute under Circuit 

Rule 42-1 on August 17, 2016.

Although this first motion to reopen and the subsequent 

appeal appear to have been prepared pro se, Petitioners 

repeatedly assert that the documents were prepared by 
SANCHEZ ROSALES V. BARR 7

Lewis. At minimum, it appears that Lewis signed the 

certificate of service attached to the petition for review filed 

in this court.

C.

Petitioners filed their second motion to reopen removal 

proceedings with the BIA, the motion underlying the current 

petition for review, on April 28, 2017, approximately eight 

months after their first petition for review was dismissed by 

this court. For the first time, Petitioners claim that Lewis 

instructed them not to attend their hearing before the 

immigration judge.1 The motion states that Petitioners first 

learned of Lewis’ ineffective assistance after they retained 

their current counsel—the same firm that appeared on their 

behalf in this court in 2015. The motion does not say exactly 

when current counsel determined that Lewis provided 

ineffective assistance, only that it was “[a]fter thoroughly 

investigating their case.” Petitioners’ second motion also 

seeks to reopen proceedings to apply for cancellation of 

removal based on the hardship that removal to Mexico 

would cause their sons, especially their son who suffers from 

developmental disabilities.

The BIA denied the second motion to reopen on 

February 16, 2018, setting forth two reasons in support of its 

decision. First, the BIA denied Petitioners’ motion to reopen 

to rescind the in absentia order because Petitioners failed to 

“establish[] that they were prejudiced by ineffective 

assistance or fraud.” Second, the BIA denied Petitioners’ 

1 We have previously granted a petition for review where the same 

non-attorney notario, Carlos Lewis, fraudulently held himself out as an 

attorney, engaged in “deceptive practices,” and failed to file a timely 

appeal with the BIA. See Godinez v. Lynch, 629 F. App’x 776, 777–78 

(9th Cir. 2015) (unpublished).
8 SANCHEZ ROSALES V. BARR

motion to reopen to seek cancellation of removal because 

they failed to present evidence sufficient to show that “their 

return to Mexico would result in exceptional and extremely 

unusual hardship for their . . . children.”

Petitioners filed this timely petition for review on March 

9, 2018.

II.

We have jurisdiction under 8 U.S.C. § 1252. We review 

for abuse of discretion the denial of a motion to reopen. 

Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). The 

BIA abuses its discretion when it makes an error of law or 

fails to provide a reasoned explanation for its actions. 

Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008); 

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

III.

“In reviewing the decision of the BIA, we consider only 

the grounds relied upon by that agency. If we conclude that 

the BIA’s decision cannot be sustained upon its reasoning, 

we must remand to allow the agency to decide any issues 

remaining in the case.” Andia v. Ashcroft, 359 F.3d 1181, 

1184 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 16–

17 (2002)). Here, the BIA gave two reasons for denying 

Petitioners’ second motion to reopen due to ineffective 

assistance: First, that the denial of Petitioners’ first motion 

to reopen had been “legally correct”; and second, that 

Petitioners had not shown that “they were prejudiced by 

ineffective assistance or fraud.”

The first reason cannot stand on its own because Lewis’ 

ineffective assistance had not yet been disclosed when the 

agency decided the first motion to reopen. Relying solely on 
SANCHEZ ROSALES V. BARR 9

the previous decision would impermissibly ignore the 

central argument of the second motion. See Sagaydak v. 

Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“We think it 

goes without saying that IJs and the BIA are not free to 

ignore arguments raised by a petitioner.”).

The BIA’s second ground for denial is legally erroneous. 

Petitioners were not required to demonstrate that the 

ineffective assistance of the non-attorney notario caused 

them prejudice. Ordinarily, a person who claims to have 

received ineffective assistance in an immigration proceeding 

must show that the ineffective assistance caused prejudice. 

See Flores v. Barr, 930 F.3d 1082, 1085 (9th Cir. 2019) 

(citing In re Lozada, 19 I. & N. Dec. 637 (BIA 1988)). But 

when ineffective assistance leads to in absentia removal, we 

have “followed the BIA’s usual practice of not requiring a 

showing of prejudice.” Lo, 341 F.3d at 939 n.6 (citing 

Monjaraz-Munoz, 327 F.3d at 898).

In Lo, we observed that the BIA “does not normally 

require a showing of prejudice when a motion for rescission 

of an in absentia removal order is grounded on ineffective 

counsel.” Id. We relied on the BIA’s decision in In re 

Rivera-Claros, in which it explained that “in order to rescind 

an order of deportation entered following a hearing 

conducted in absentia,” petitioners need not establish 

“prejudice to obtain relief.” 21 I. & N. Dec. at 603 n.1; see 

also In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 

(BIA 1996) (“[A]n alien is not required to show prejudice in 

order to rescind an order of deportation entered following a 
10 SANCHEZ ROSALES V. BARR

hearing conducted in absentia under [former] section 

242B(c)(3) of the Act.”).2

However, in Lo, we noted that the BIA has in at least one 

case analyzed prejudice in granting a “motion to reopen an 

in absentia order of deportation on the basis of ineffective 

assistance of counsel.” 341 F.3d at 939 n.6 (citing In re NK- & V-S-, 21 I. & N. Dec. 879, 881 (BIA 1997)). But in 

that decision, the BIA did not explain why it had analyzed 

prejudice despite its prior statements in In re Rivera-Claros

and In re Grijalva-Barrera that a showing of prejudice was 

not required in that context. See In re N-K- & V-S-, 21 I. & 

N. Dec. at 881. Regardless, the BIA ultimately determined 

that prejudice had been shown because the petitioners’ 

attorney had not informed them of the date of their hearing, 

thus analyzing whether a showing of prejudice was required 

was not necessary to the BIA’s decision. Id. Although we 

were aware of In re N-K- & V-S- when we decided Lo, we 

concluded that not requiring a showing of prejudice is the 

BIA’s “norm[]” and “usual practice,” and determined that 

we would “require no such showing [there].” Lo, 341 F.3d 

at 939 n.6.3

2 The specific statutory provision governing rescission of in absentia 

orders of deportation cited in In re Grijalva-Barrera and In re RiveraClaros was repealed by the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. No. 104-208, § 308(b)(6), 110 Stat. 

3009-615 (repeal noted at 8 U.S.C. § 1252b). That repeal had already 

been effective for several years when we decided Lo in 2003. See Lo, 

341 F.3d at 936 (citing the current statutory provision governing 

rescission of in absentia orders of removal).

3 We have also determined that a showing of prejudice is not 

required in this context in a subsequent unpublished decision. See PerezMonje v. Holder, 400 F. App’x 141, 141–42 (9th Cir. 2010) 

(unpublished) (“The [BIA] erred in relying on Perez-Monje’s failure to 
SANCHEZ ROSALES V. BARR 11

Here, the BIA’s denial of Petitioners’ motion based on a 

failure to show prejudice is inconsistent with the BIA’s 

published decision in In re Rivera-Claros and our 

subsequent decisions. This error constitutes an abuse of 

discretion. See Cerezo, 512 F.3d at 1166. We therefore 

remand to the BIA to evaluate Petitioners’ motion without 

requiring a showing of prejudice.

IV.

If the agency determines that the proceedings should be 

reopened to rescind Petitioners’ in absentia removal order, 

then Petitioners’ request for the agency to reopen 

proceedings for cancellation of that removal order will be 

moot. We therefore do not reach the BIA’s denial of that 

aspect of Petitioners’ second motion to reopen.

Petition for review GRANTED; REMANDED for 

further proceedings consistent with this opinion.

VANDYKE, Circuit Judge, dubitante:

The majority opinion correctly concludes that circuit 

precedent compels our result in this case. See Lo v. Ashcroft, 

341 F.3d 934, 939 n.6 (9th Cir. 2003). Under that precedent, 

the BIA erred when it required the petitioners to demonstrate 

prejudice wrought by their notario’s purported ineffective 

assistance that caused them to be removed in absentia. Id.

show prejudice as the basis for denying his motion to reopen proceedings 

after an in absentia order. Such a showing is not required in this context.” 

(citing Lo, 341 F.3d at 939 n.6)).
12 SANCHEZ ROSALES V. BARR

I write separately because that precedent is silly and well 

illustrates our court’s nasty habit of muddying immigration 

law and holding the BIA—an appellate body—to stilted 

standards to which we would never subject ourselves.

As the majority opinion observes, the entire rationale for 

the footnote-born rule that controls here rested on the 

premise that “[t]he BIA ... does not normally require a 

showing of prejudice when a motion for rescission of an in 

absentia removal order is grounded on ineffective assistance 

of counsel.” Id. For support, Lo cited three BIA decisions—

the most recent of which did require a petitioner to 

demonstrate prejudice when seeking to reopen an in absentia 

removal caused by ineffective assistance. Id.; see Matter of 

N-K- & V-S-, 21 I. & N. Dec. 879, 880 (BIA 1997) (“One 

must show, moreover, that he was prejudiced by his 

representative’s performance.” (quotation marks omitted)). 

I suppose one might argue that two out of three ain’t bad.

But even Meat Loaf would find fault with our Lo

rule. The other two BIA decisions that declined to require a 

showing of prejudice did so based on their reading of 

statutory text that was repealed seven years before we 

decided Lo. Lo, 341 F.3d at 939 n.6 (citing See Matter of 

Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996), and 

In Re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 

1996)). To bolster Grijalva-Barrera’s one-sentence 

statement of this “no prejudice” rule, the BIA cited to a Fifth 

Circuit case that, again, affirmatively required a showing of 

prejudice. 21 I. & N. at 473 n.2 (citing Patel v. I.N.S., 

803 F.2d 804, 807 (5th Cir. 1986) (“[T]o sustain a due 

process challenge to a[n in absentia] deportation proceeding, 

an alien must show substantial prejudice.”).

Beyond this dubious reliance on BIA precedent, Lo also 

indicated it was following the example of another of our 
SANCHEZ ROSALES V. BARR 13

cases. See Lo, 341 F.3d at 939 n.6 (citing Monjaraz-Munoz 

v. I.N.S., 327 F.3d 892, 898 n.3 (9th Cir.), opinion amended 

on denial of reh’g, 339 F.3d 1012 (9th Cir. 2003)). But in 

Monjaraz-Munoz, we remanded to the BIA and expressly 

declined to address whether the petitioner’s Fifth 

Amendment due process rights were violated—the part of 

the inquiry where prejudice comes into play. See id. at 898 

n.3; see also Lata v. I.N.S., 204 F.3d 1241, 1246 (9th Cir. 

2000) (“To prevail on a due process challenge to deportation 

proceedings, Lata must show error and substantial 

prejudice.”).

That is the unpromising soil from which our Lo rule 

sprang forth. Worse, our precedent that was supposedly 

predicated on deference to the BIA’s practice now somehow 

perversely forces us to penalize the BIA when it fails to 

rigidly adhere to its (inconsistent) prior practice—a change 

eminently justified by the fact that the old (inconsistent) 

practice relied on a statute that hasn’t existed for roughly 

24 years. If you are wondering how precedent purportedly 

based on deference to the BIA could repeatedly require us to 

effectively reverse the BIA’s decisions, you would be in 

good company.

This type of absurdity is regular fare in our immigration 

cases. Our circuit’s immigration jurisprudence is a hot mess. 

It’s sharply at odds with the text and purposes of 

immigration law, including the REAL ID Act. It regularly 

ignores the important difference between the BIA’s direct

appellate role versus our court’s indirect and supposedly 

deferential role on review. Much of our circuit’s caselaw 

seems designed to make it very difficult for the BIA to do its 

job; we perform our highly deferential review in an 

extremely nondeferential manner. See generally 8 U.S.C. 

§ 1252(b)(4)(B) (the agency’s “findings of fact are 
14 SANCHEZ ROSALES V. BARR

conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary”); see also id.

§ 1252(b)(4)(C) (decisions on alien inadmissibility 

“conclusive unless manifestly contrary to the law”); see also 

id. § 1252(b)(4)(D) (discretionary judgments on asylum 

relief are “conclusive unless manifestly contrary to the law 

and an abuse of discretion”).

This rule is a great example. Consistent with the general 

rule that a petitioner relying on ineffective assistance must 

show resulting prejudice, see Rojas-Garcia v. Ashcroft, 

339 F.3d 814, 826 (9th Cir. 2003), petitioners’ second 

motion to reopen in this case (unquestionably lodged with 

the aid of competent counsel) conceded that they must 

establish prejudice. So even petitioners’ counsel didn’t 

know about our non-intuitive exception to the normal rule. 

Ostensibly, we adopted our strange exception because that is 

“normally” the rule the BIA applies. Lo, 341 F.3d at 939 

n.6. As an initial matter, it seems odd that we would now 

routinely use that rule against the BIA, when the rule is 

supposedly meant to mirror the BIA’s customary practice. 

Maybe our basis for the rule turns out to be not particularly 

accurate after all.

But it gets odder still. As mentioned above, Lo’s fateful 

footnote purports to rely upon Monjaraz-Monoz, another 

Ninth Circuit case decided three weeks earlier. Id. (citing 

Monjaraz-Monoz, 327 F.3d at 898 n.3). But MonjarazMonoz didn’t expressly decline to require a showing of 

prejudice—it doesn’t mention prejudice at all. And there’s 

a good reason for this: the Monjaraz-Monoz court declined 

to determine whether due process had actually been violated. 

327 F.3d at 898 n.3; id. at 896 (“[I]f an alien fails to appear 

because of his actual and reasonable reliance on counsel’s 

erroneous advice, we conclude that it can constitute a 
SANCHEZ ROSALES V. BARR 15

circumstance beyond the alien’s control”). MonjarazMonoz focused on what could constitute an exceptional 

circumstance under 8 U.S.C. § 1229a(e)(1), not on the 

ultimate question of whether a due process violation 

occurred. Id. at 896–97.

Now, Monjaraz-Monoz indicated relief might be 

available where an attorney gives bad advice. Id. Lo

extended Monjaraz-Monoz’s rationale to the case where 

petitioners construed a legal secretary’s comments as legal 

advice that turned out to be bad. Lo, 341 F.3d at 935–36. 

Yet it’s notable that Monjaraz-Monoz only reached its result 

by distinguishing another case, Singh-Bhathal v. I.N.S., 

where our court squarely rejected the notion that bad advice 

from a non-lawyer constitutes exceptional circumstances 

sufficient to rescind an in absentia removal order. See 

170 F.3d 943, 946–47 (9th Cir. 1999).

So ... once again our jurisprudence betrays the nasty 

habit of acknowledging only those precedents that support 

the needs (and desired result) of the moment—that being to 

overturn the BIA. Need more evidence that the defining 

characteristic of our circuit’s immigration law is looking for 

any reason to overturn the BIA? Lo didn’t cite to Lopez v. 

I.N.S., which granted a petition for review where a notario 

holding himself out as an attorney advised the petitioner not 

to appear for his hearing and the petitioner was ordered 

removed in absentia. 184 F.3d 1097, 1100 (9th Cir. 1999). 

Why on earth wouldn’t Lo just cite this case that involved 

bad advice from a non-lawyer and a motion to reopen an in 

absentia removal order? Lopez seems to tick all the boxes. 

Oh, right. Because Lopez concluded that, in addition to the 

normal ineffective assistance showing, the petitioner had to 

show prejudice. Id. at 1100 (“Further, the alien must show 
16 SANCHEZ ROSALES V. BARR

that he was prejudiced by his representative’s 

performance.”).

Under Singh-Bhathal or Lopez or Matter of N-K- & V-Sor even the principal ineffective assistance case this court 

has adopted—Matter of Lozada, 19 I. & N. Dec. 637, 638 

(BIA 1988) (“One must show, moreover, that he was 

prejudiced by his representative’s performance.”)—the BIA 

in this case could have (indeed, should have) required the 

petitioners to show prejudice. That should be the law in our 

circuit. But instead we have Lo.

To sum up, a dubious and incomplete picture of BIA 

precedents was ratcheted into a rule supposedly meant to 

replicate exactly what the BIA was doing. Now, we’re 

applying that rule to reverse the BIA for not doing the thing 

they apparently did so often we decided to do it, too. And 

we have to apply it even though this court in Singh-Bhathal

rejected an ineffective assistance claim indistinguishable 

from the one in this case. As my colleague remarked about 

another anomalous rule in a different corner of our 

immigration law, the rule our panel is forced to apply in this 

case—like so many of our court’s immigration precedents—

is “dumb, dumb, dumb.” Orellana v. Barr, 967 F.3d 927 

(9th Cir. 2020) (Owens, J., concurring).

Unfortunately, our “no-prejudice-in-a-motion-toreopen-based-on-ineffective-assistance” rule—devoid of 

any rationale now or when it was adopted—is just the tip of 

one of myriad icebergs lurking below the surface of our 

immigration jurisprudence designed to wreck as many BIA 

vessels as possible. Is the rule we must apply here good law? 

Of course not. There is no reason why a petitioner 

attempting to claim ineffective assistance of counsel 

shouldn’t need to show prejudice. Showing prejudice, after 

all, is a mainstay of ineffective assistance claims under the 
SANCHEZ ROSALES V. BARR 17

Fifth Amendment’s Due Process Clause. But neither 

Congress’s sensible policy objectives nor our limited role 

have much to do with “the schizophrenic way we administer 

our immigration laws” in this circuit. Angov v. Lynch, 

788 F.3d 893, 901 (9th Cir. 2015).