“The Board held that the Stroes in moving to reopen the deportation proceeding on the basis of Adkison’s alleged ineffective assistance had satisfied (1), but not (2) or (3). Regarding (2), the Stroes had notified Adkison with regard to his failure to file the brief on time, but not with regard to other claims of ineffective assistance on which they based the motion to reopen, including failure to present essential facts bearing on the Stroes’ claim for asylum – their only defense to being deported. By not giving Adkison an opportunity to comment on this claim, the Stroes denied the Board of Immigration Appeals an opportunity to evaluate the significance of Adkison’s failure to file a brief. Suppose Adkison had good reasons not to present additional facts to the immigration judge. Then, even if Adkison had filed a timely brief, it might be clear that the appeal would have failed for want of a solid factual basis for the claim for asylum.”
Petition for Review of an Order of the Board of Immigration Appeals, Posner, J.