UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JINGSHAN LI, No. 18-70278

Petitioner, Agency No. A077-094-679 v. PAMELA BONDI, Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted October 17, 2023 Pasadena, California

Filed June 10, 2025

Before: A. Wallace Tashima, Daniel P. Collins, and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez; Dissent by Judge Collins 2 LI V. BONDI

SUMMARY*

Immigration

Granting Jingshan Li’s petition for review of a decision of the Board of Immigration Appeals denying his motion to reopen, the panel concluded that the Board abused its discretion by failing to offer a reasoned explanation for its determination that it cannot or should not review claims of ineffective assistance of counsel before a different tribunal, and remanded. In 2002, the Board affirmed an immigration judge’s order of removal. Li’s former counsel filed a petition for review in this court, but failed to file an opening brief, and the court dismissed Li’s petition for failure to prosecute. In 2017, Li, represented by new counsel, filed a motion with the Board, asking it to rescind and reissue its prior decision. Li argued that his prior attorney had been ineffective by failing to file an opening brief in the Ninth Circuit. In denying Li’s motion, the Board noted that, under Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009) [Compean II], it has discretion to consider claims of ineffective assistance of counsel based on conduct that occurred after a final order of removal. However, the Board declined to consider Li’s motion, stating that the claimed ineffective assistance of counsel affected Li’s “case before the Ninth Circuit, a different tribunal in a different branch of the Government.”

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LI V. BONDI 3

The panel began by rejecting the Government’s arguments that the court lacked jurisdiction to review the denial of Li’s motion. Although styled as a “motion to reissue,” the panel concluded that Li’s motion was properly understood as a statutory motion to reopen, which courts have long had jurisdiction to review. The Government also argued that the court lacked jurisdiction because Compean II recognized the Board’s absolute discretion to decide whether to reopen based on alleged ineffective assistance after a final order of removal. Rejecting that contention, the panel explained that the jurisdiction-stripping provision in 8 U.S.C.§ 1252(a)(2)(B) did not apply because Compean II’s conferral of discretion was an action by the Attorney General only (as opposed to Congress). As to the Government’s argument that there are no meaningful standards to guide review here, the panel wrote that courts routinely review the Board’s reopening decisions. Addressing Compean II, as well as longstanding circuit precedent, the panel concluded that the Board’s power to consider claims of ineffective assistance based on conduct of counsel that occurred after a final order of removal includes the power to review deficient performance that occurs before a different tribunal. That is especially true where, as here, a counsel’s alleged deficiencies deprive a petitioner of any meaningful appellate review. Concluding that the Board acted arbitrarily in denying Li’s motion, the panel wrote that the Board’s bare statement that the conduct occurred “before the Ninth Circuit, a different tribunal in a different branch of the Government,” wi