Mezo v. Holder, 09-3336, concerned a challenge to the BIA's denial of an Iraqi citizen's motion to reopen, claiming that she received ineffective assistance of counsel. In vacating the BIA's denial and remanding, the court held that there is no evidence in the record to support the BIA's conclusion that petitioner's untimely filed appeal resulted from her own lack of diligence. Therefore, if the Board finds that petitioner received ineffective assistance of counsel and that she was prejudiced by the ineffective assistance, equitable tolling would apply and the motion to reopen would be timely. However, if the Board finds that petitioner did not receive ineffective assistance of counsel, equitable tolling would not apply and the motion to reopen would not be timely and the Board would lack jurisdiction to hear the motion to reopen.
Ikharo v. Holder, 08-4139, concerned a Nigerian citizen's petition for review of the BIA's affirmance of an IJ's denial of an application for waiver of inadmissibility, asylum and related relief, and an order denying petitioner's motion to reconsider. In denying the petition, the court held that, although petitioner has a plausible argument that the BIA's rejection of his pro se brief in the absence of his attorney's signature constituted a defect in his removal proceedings, he is unable to demonstrate that he was prejudiced by the existence of any such defect. The court also held that petitioner has waived any challenge to the BIA's denial of his motion for reconsideration.