Goonsuwan v. Ashcroft

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 00-10349
_______________

ANIRUT GOONSUWAN, also known as DONG A. MANUCY,
Petitioner-Appellee,
v.
JOHN ASHCROFT, U. S. Attorney General,

Respondent-Appellant.

---------------------------------
Appeal from the United States District Court
for the Northern District of Texas
---------------------------------

May 18, 2001

Before KING, Chief Judge, ALDISERT* and BENAVIDES, Circuit
Judges.

BENAVIDES, Circuit Judge:
Anirut Goonsuwan, also known as Dong Manucy, the name given
to him when he was adopted by his step-father, came to the United
States from Thailand with his mother and sister in 1975. From
the age of four, Goonsuwan was raised in the United States by his
mother and step-father, an Air Force officer. He is unfamiliar
with his native Thailand. Goonsuwan does not speak the Thai
language and, since his departure, has lost all contact with his
relatives in Thailand. The only life and family he knows is here

*
Circuit Judge of the Third Circuit, sitting by
designation.
in the United States.
In 1990, in two separate incidents, Goonsuwan was convicted
for the offenses of burglary of a motor vehicle and burglary of a
habitation. On June 6, 1994, the INS issued an Order to Show
Cause charging Goonsuwan as being deportable pursuant to §
241(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), 8
U.S.C. § 1251(a)(2)(A)(ii), in that at any time after entry,
Goonsuwan had been convicted of two crimes involving moral
turpitude not arising out of a single scheme of criminal
misconduct. Goonsuwan conceded deportability and applied for a
waiver of deportation under § 212(c) of the INA, 8 U.S.C. §
1182(c).1 Balancing the factors outlined in Matter of Marin, 16

I&N Dec. 581 (BIA 1978), the immigration judge found that the
adverse factors evidencing Goonsuwan’s undesirability as a
permanent resident outweighed the social and humane factors
presented in his favor. The immigration judge therefore denied
Goonsuwan’s application for a waiver. Goonsuwan appealed the
immigration judge’s denial of a waiver to the Board of

1
Section 212(c), codified at 8 U.S.C. § 1182(c), provides:

Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General without
regard to the provisions of subsection (a) (other than
paragraphs (d) and (9)(C)). Nothing contained in this
subsection shall limit the authority of the Attorney General
to exercise the discretion vested in him under section
211(b). The first sentence of this subsection shall not
apply to an alien who has been convicted of one or more
aggravated felonies and has served for such felony or
felonies a term of imprisonment of at least 5 years.

2
Immigration Appeals (“BIA” or “the Board”). Goonsuwan,
represented by the same counsel as at his deportation hearing,
did not raise an ineffective assistance of counsel claim before
the BIA. The BIA denied his appeal on the merits.
On July 24, 1998, Goonsuwan filed his instant habeas
petition in the federal district court for the Western District
of Texas alleging ineffective assistance of counsel during his
deportation hearing.2 The alleged deficiency in counsel’s
performance was his failure to introduce documentary evidence
that Goonsuwan provided to him on the eve of trial.3 At the
deportation hearing, Goonsuwan’s counsel instead relied solely on
the testimony of Goonsuwan and his parents. The district court,
“convinced that counsel’s failure to present relevant and
necessary evidence in support of Goonsuwan’s application for
discretionary relief rendered the proceeding fundamentally unfair
and that substantial prejudice resulted,” granted petitioner’s
writ. The district court ordered a new hearing on Goonsuwan’s

2
It is well settled that, because deportation hearings are
considered civil in nature, there is no Sixth Amendment right to
counsel. Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022
n.6 (5th Cir. 1999); Paul v. INS, 521 F.2d 194, 198 (5th Cir.
1975). Aliens do, however, have a constitutionally protected
right to procedural due process when deportation proceedings are
initiated against them. Zadvydas v. Underdown, 185 F.3d 279, 295
(5th Cir. 1999). This right to due process is violated when “the
representation afforded them was so deficient as to impinge upon
the fundamental fairness of the hearing,” Paul, 521 F.2d at 198,
and that, as a result, the alien suffered substantial prejudice.
Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993).
3
The documents included character references and impact
statements from his sister, father, high school principal,
neighbor, probation officer, and two former employers.

3
application for waiver of deportation under § 212(c) or that he
be released from custody and all further deportation efforts be
ceased. The Government moved for reconsideration under Rule
59(e). The district court denied the motion and reaffirmed its
previous holding. The Government filed a timely notice of
appeal.

Jurisdiction

Although not briefed by the parties in their original
submissions, the issue of jurisdiction must be addressed by this
Court, sua sponte if necessary. Casteneda v. Falcon, 166 F.3d
799, 801 (5th Cir. 1999). However compelling our desire to reach
the merits of a case, we must do so prudently and within our
jurisdictional bounds. “Moreover, not only must we be confident
of our own jurisdiction, but we are required to ensure that the
district court also had jurisdiction to consider the merits.”
Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2000). Our concern,
in this regard, is whether Goonsuwan exhausted his available
administrative remedies before seeking habeas relief in the
district court. Goonsuwan did not argue his ineffective
assistance of counsel claim before the BIA, nor has he filed a
motion to reopen his deportation proceedings, a remedy available
under INS’ regulations, based on his ineffectiveness claim.4 To

4
“A motion to reopen seeks fresh consideration on the basis
of newly discovered facts or a change in circumstances since the
hearing, or solicits an opportunity to apply for discretionary
relief. . . . Motions to reopen in immigration proceedings will
not be granted unless it appears that the new evidence is

4
inform our decision, we ordered the parties to file supplemental
briefing on whether the exhaustion requirement of § 106(c) of the
INA applies in habeas corpus proceedings; and, if so, whether,
under these facts, Goonsuwan was required to file a motion to
reopen with the BIA in order to exhaust his administrative
remedies.5 Having fully considered the parties’ arguments, we
conclude that § 106(c), including its exhaustion requirement,
applies to Goonsuwan’s habeas petition. We further conclude that
while generally a motion to reopen is not required to exhaust
administrative remedies under § 106(c), Goonsuwan’s failure to
raise his ineffective assistance of counsel claim before the BIA
deprived the district court of jurisdiction to consider the issue

material and could not have been discovered and presented at the
former hearing.” 1 Charles Gordon, Stanley Mailman, & Stephen
Yale Loehr, IMMIGRATION LAW AND PROCEDURE § 3.05[7][a] (Matthew Bender
rev. ed. 2001).
5
Section 106(c) of the INA, codified at 8 U.S.C. §
1105a(c), provides:

An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right under
the immigration laws and regulations or if he has departed
from the United States after the issuance of the order.
Every petition for review or for habeas corpus shall state
whether the validity of the order has been upheld in any
prior judicial proceeding, and, if so, the nature and date
thereof, and the court in which such proceeding took place.
No petition for review or for habeas corpus shall be
entertained if the validity of the order has been previously
determined in any civil or criminal proceeding, unless the
petition presents grounds which the court finds could not
have been presented in such prior proceeding, or the court
finds that the remedy provided by such prior proceeding was
inadequate or ineffective to test the validity of the order.

5
in Goonsuwan’s petition for habeas corpus.

Whether Goonsuwan was required to exhaust his administrative
remedies prior to filing a habeas corpus petition?

The Illegal Immigrant Reform and Immigration Responsibility
Act (IIRIRA) created two sets of rules governing immigration
proceedings. In determining whether a statutory exhaustion
requirement exists, we must initially determine which set of
rules – transitional or permanent – governs Goonsuwan’s case.
IIRIRA’s transitional rules apply to removal proceedings that
commence before April 1, 1997 and conclude more than thirty days
after September 30, 1996. Lerma de Garcia v. INS, 141 F.3d 215,
216 (5th Cir. 1998). Since Goonsuwan’s deportation proceedings
were initiated on June 6, 1994 and did not conclude until his BIA
appeal was denied on February 25, 1997, IIRIRA’s transitional
rules apply. Requena-Rodriguez, 190 F.3d 299, 302 (5th Cir.
1999); IIRIRA §§ 309(a) and (c)(1). The transitional rules
governing judicial review set forth in IIRIRA § 309(c)(4)

incorporate § 106(c) of the INA. Santos v. Reno, 228 F.3d 591,
596 (5th Cir. 2000).
Section 106(c) states that unless an alien exhausts his
available administrative remedies, the deportation order “shall
not be reviewed by any court.” The provisions of § 106(c)
clearly apply to direct appeals to this Court from Board orders.
Goonsuwan argues, however, that § 106(c)’s exhaustion requirement
does not apply in habeas corpus proceedings brought pursuant to §

6
2241.6 Goonsuwan’s argument relies on our recent precedent which
interpreted the language “shall not be reviewed by any court” in
a separate provision of the permanent rules to bar only normal
judicial review, and not collateral review. Requena-Rodriguez v.

Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999).
While there are meaningful reasons to give the phrase a
different interpretation under § 106(c), we need not rely on them
as we have controlling precedent applying § 106(c) in habeas

proceedings.7 In Santos v. Reno, we stated broadly that a
“[habeas] petition is subject to 8 U.S.C. § 1105a(c) [§ 106(c)].”
228 F.3d at 596. More specifically, this Court has found §
106(c) precludes a district court from reviewing a habeas
petition when the petitioner has departed the United States.
Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986). The
departure limitation on judicial review is contained in the same
clause as the exhaustion requirement. See § 106(c) (“An order of
deportation or of exclusion shall not be reviewed by any court if
the alien has not exhausted the administrative remedies available
to him as of right under the immigration laws and regulations or

6
Goonsuwan brought his claim pursuant to § 2241 because he
is statutorily ineligible under AEDPA § 309(c)(4)(G) for direct
review by this Court of his deportation order because he
committed two crimes involving moral turpitude. Lerma de Garcia,
141 F.3d at 216.
7
A contrary interpretation under the permanent rules would
have denied this Court any ability to exercise habeas
jurisdiction over Board decisions. Whereas, under § 106(c) the
interpretation does not preclude judicial review, but simply
establishes an antecedent requirement to the district court’s
exercise of habeas jurisdiction over Board decisions.

7
if he has departed from the United States after the issuance of
the order.”). Construing the departure limitation to apply in
habeas, we concluded that “Congress ‘meant what it said’ when it
provided that ‘no court’ may review a deportation order once

deportation has occurred.” Quezada v. INS, 898 F.2d 474, 477
(5th Cir. 1990). Similarly, no court may review a deportation
order until an alien exhausts his administrative remedies. If
Goonsuwan failed to comply with the statutorily mandated
exhaustion requirement in § 106(c), the district court was
without jurisdiction to consider his petition. See Townsend v.

INS, 799 F.2d 179, 181 (5th Cir.1986) (“When exhaustion is
statutorily mandated, the requirement is jurisdictional.”); 8
Charles Gordon, Stanley Mailman, & Stephen Yale Loehr, IMMIGRATION
LAW AND PROCEDURE § 1.04[3][a][iii] (Matthew Bender rev. ed. 2000)
(“Because the INA statutorily mandates exhaustion in removal
cases, the requirement is considered jurisdictional and
nonwaivable when the matter at issue is within the competence of
the agency . . . .”).

Did Goonsuwan exhaust his available administrative remedies?
Our inquiry thus turns to what is required of Goonsuwan in
order to exhaust his administrative remedies. Specifically, must
he file a motion to reopen with the BIA in order to exhaust his
remedies. Section 106(c) requires a petitioner to exhaust his
remedies available “as of right.” Goonsuwan argues that the
discretionary nature of a motion to reopen removes it from the
category of remedies available “as of right.” As a general

8
matter, we agree with Goonsuwan and our sister circuits that the
filing of a motion to reopen is not required to satisfy §
106(c)’s exhaustion requirement. Arango-Aradondo v. INS, 13 F.3d

610 (2d Cir. 1994); Gebremichael v. INS, 10 F.3d 28, 33 n.13(1st

Cir. 1993); White v. INS, 6 F.3d 1312 (8th Cir. 1993); Rhoa-

Zamora v. INS, 971 F.2d 26 (7th Cir. 1992); but see Dokic v. INS,
899 F.2d 530, 532 (6th Cir.1990).
Motions to reopen immigration hearings are not authorized by
statute, but by the Attorney General in a regulation promulgated
pursuant to the INA. INS v. Doherty, 502 U.S. 314, 322, 112
S.Ct. 719 (1992); 8 C.F.R. § 3.2 (1999). This regulation, § 3.2,
is framed in negative terms – stating that unless certain
conditions are satisfied the Board shall not grant a motion to
reopen.8 Conversely, if the conditions are met, § 3.2 merely
permits, but does not require, the BIA to reopen the proceedings.

8
Section 3.2(c)(1) provides:

(1) A motion to reopen proceedings shall state the new facts
that will be proven at a hearing to be held if the motion is
granted and shall be supported by affidavits or other
evidentiary material. A motion to reopen proceedings for the
purpose of submitting an application for relief must be
accompanied by the appropriate application for relief and
all supporting documentation. A motion to reopen proceedings
shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing; nor shall any motion to reopen for the
purpose of affording the alien an opportunity to apply for
any form of discretionary relief be granted if it appears
that the alien's right to apply for such relief was fully
explained to him or her and an opportunity to apply
therefore was afforded at the former hearing, unless the
relief is sought on the basis of circumstances that have
arisen subsequent to the hearing.

9
See 8 C.F.R. § 3.2(a) (“The Board has discretion to deny a motion
to reopen even if the party moving has made out a prima facie
case for relief.”); 8 C.F.R. § 3.2(c)(1) (“[A] motion to reopen
proceedings . . . may be granted if the alien demonstrates that
he or she was statutorily eligible . . . .) (emphasis added).
Given the broad discretion in the Attorney General to grant or
deny a motion to reopen, it cannot be characterized as a remedy
available “as of right.” Thus, in general, a petitioner is not
required to file a motion to reopen in order for the district
court to have jurisdiction over his habeas petition.
This holding is consistent with our decision in Ramirez-

Osorio v. INS, 745 F.2d 937 (5th Cir. 1984). In Ramirez-Osorio,
the petitioners alleged a due process violation because they were
not told of their right to seek asylum during their deportation
hearing. The petitioners raised this claim before the BIA on
direct appeal, however, they did not file a motion to reopen. In
not requiring the petitioners to file a motion to reopen prior to
our review of their claims, we noted the discretionary nature of
motions to reopen;9 the fact that a motion to reopen does not
suspend deportation proceedings;10 and that the petitioners were
not presenting the type of claim typically considered in a motion

9
“[T]he government’s argument would require petitioners to
pursue before our review a remedy that would not assure any
hearing before deportation.” Id. at 940.
10
“There is no longer an automatic suspension of
deportation pending the ruling upon the motion to reopen.” Id.
(citations omitted).

10
to reopen.11 Given the unavailability of administrative remedies
to address their claims, we were persuaded that “motions to
reopen the deportation hearings in order to petition for asylum
are not here a sufficiently effective remedy that they must be

pursued before an appeal to this court.” Id. at 940 (emphasis
added).
Although the failure to file a motion to reopen does not
always preclude judicial review, in the present case we find
Goonsuwan’s failure to raise his ineffective assistance of
counsel claim before the BIA deprived the district court of
jurisdiction to hear the issue. In this regard, Goonsuwan’s
argument that the failure to file a motion to reopen is not
required to exhaust administrative remedies misses the mark. The
appropriate inquiry is not whether Goonsuwan filed a motion to
reopen, but rather whether he presented to the BIA the issue of
ineffective assistance of counsel raised in his habeas petition,

thus exhausting his administrative remedies as to that issue.

The petitioners in Ramirez-Osorio argued before the Board
that the immigration judge should have informed them of their
right to apply for asylum. 745 F.2d at 939. Therefore, we had
jurisdiction to consider that claim despite their failure to file
a motion to reopen. On the other hand, because Goonsuwan did not
raise his procedural issue below, the district court was without

11
“[A] motion to reopen requires new evidence unavailable
at the deportation hearing, petitioners conceded they had no new
evidence but rather only an explanation that they did not know
they could apply for asylum.” Id.

11
jurisdiction to consider it in his habeas petition. Pierre v.

INS, 932 F.2d 418, 421 (5th Cir. 1991) (citing 8 U.S.C. §

1105a(c)); see Mamoka v. INS, 43 F.3d 184, 187 (5th Cir. 1995)
(“Because the BIA has not ruled on the issue, we will not
consider it.”); Townsend v. INS, 799 F.2d 179, 180 (5th Cir.
1986) (concluding that because the issues were not properly
presented to the BIA “we are without jurisdiction to review
petitioners’ arguments”); Yahkpua v. INS, 770 F.2d 1317, 1320
(5th Cir. 1985) (petitioner “may not introduce on appeal issues
that were not presented to or considered at the administrative
level”)). Our precedent holding § 106(c) contains a
jurisdictional bar where an issue sought to be raised was not
first presented to the agency is in line with the position of
other circuits.12
Even when exhaustion is a jurisdictional bar, this Court
recognizes an exception “when administrative remedies are
inadequate.” Ramirez-Osorio v. INS, 745 F.2d 937, 939 (5th

Cir.1984) (citing NLRB v. Industrial Union of Marine and

Shipbuilding Workers of America, 391 U.S. 418, 426 n. 8, 88 S.Ct.
1717, 1723 n. 8, 20 L.Ed.2d 706 (1968)). Similarly, the First

12
Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (citing
Mojsilovic v. INS, 156 F.3d 743, 748-49 (7th Cir. 1998); Perkovic
v. INS, 33 F.3d 615, 619 (6th Cir. 1994); Asencio v. INS, 37 F.3d
614, 615-16 (11th Cir. 1994); Ravindran v. INS, 976 F.2d 754, 761
(1st Cir. 1992); Rivera-Zurita v. INS, 946 F.2d 118, 120 n. 2
(10th Cir. 1991); Athehortua-Vanegas v. INS, 876 F.2d 238, 240
(1st Cir. 1989); Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.
1987); Bak v. INS, 682 F.2d 441, 442-43 (3d Cir. 1982). But see
Rafeedie v. INS, 880 F.2d 506, 526 (D.C.Cir. 1989) (Ruth Bader
Ginsburg, J., concurring)).

12
Circuit stated “[e]ven where statutes impose an exhaustion
requirement the Supreme Court has, despite the rhetoric of
jurisdiction, carved out exceptions. The best founded is one
suggested by the Supreme Court, and explicitly recognized in this
and other circuits, where resort to the agency would be futile
because the challenge is one that the agency has no power to
resolve in the applicant’s favor.” Sousa, 226 F.3d at 32. We
find this exception inapplicable to the present case.
Unlike the claims presented in Ramirez-Orosio, the Board has
a recognized procedure for considering claims of ineffective
assistance of counsel:
In Matter of Lozada, 19 I & N Dec. 637, 639, 1988 WL 235454
(BIA), aff’d 857 F.2d 10 (1st Cir.1988), the BIA set out
three procedural requirements for supporting a claim of
ineffective assistance of counsel as a basis for reopening.
The BIA required: 1) an affidavit by the alien setting forth
the relevant facts, including the agreement with counsel
regarding the alien’s representation; 2) evidence that
counsel was informed of the allegations and allowed to
respond, including any response; and 3) an indication that,
assuming that a violation of “ethical or legal
responsibilities” was claimed, a complaint has been lodged
with the relevant disciplinary authorities, or an adequate
explanation for the failure to file such a complaint.

Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). Having
established a procedure for review of ineffectiveness claims, the
BIA should be given the first opportunity to correct any
procedural errors committed during Goonsuwan’s hearing. It is
irrelevant that the procedural error alleged by Goonsuwan is
couched in terms of a due process violation. Pierre, 932 F.2d at

421; Ravindran v. INS, 976 F.2d 754, 762 (1st Cir. 1992); Reid v.

Engen, 765 F.2d 1457, 1461 (9th Cir. 1985). The available

13
administrative remedy, coupled with Congress’ vesting of
jurisdiction in the agency, counsels against permitting an
exception to the jurisdictional exhaustion requirement for claims
of ineffective assistance of counsel not raised before the BIA.

See Perez-Rodriguez v. INS, 3 F.3d 1074, 1077 (7th Cir.1993)
(“The Attorney General, and, by delegation, the immigration judge
and the BIA, are vested with the primary authority to adjudicate
an alien’s deportability.”). Goonsuwan must first present his
claim of ineffective assistance of counsel to the BIA, either on
direct appeal or through a motion to reopen, otherwise § 106(c)
precludes judicial review of the issue.13 See Bernal-Vallejo,

195 F.3d 56, 64 (1st Cir. 1999); Stewart v. INS, 181 F.3d 587,

596 (4th Cir. 1999); Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d

Cir. 1994); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th

Cir. 1993); Akinwummi v. INS, 194 F.3d 1340, 1341 (10th Cir.

1991); Dokic v. INS, 899 F.2d 530, 532 (6th Cir. 1990); Roque-

13
The rationale for denying review was explained in Bernal-
Vallejo, where the First Circuit reasoned:

Usually issues not raised before the BIA may not be raised
for the first time on a petition for review. This general
rule is subject to the caveat that the BIA must have the
power to address the matter as to which exhaustion is
claimed. There are some claims of denial of due process or
deprivation of constitutional rights that are exempt from
this exhaustion requirement because the BIA has no power to
address them. This case is not one of them. The BIA has
procedures to hear ineffective assistance of counsel claims
through a motion to reopen under 8 C.F.R. § 3.2(c).
195 F.3d at 64 (citations omitted).

14
Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985).14

Conclusion
When a petitioner seeks to raise a claim not presented to
the BIA and the claim is one that the BIA has adequate mechanisms
to address and remedy, the petitioner must raise the issue in a
motion to reopen prior to resorting to review by the courts. By
this holding we do not abdicate the responsibility of federal
courts to protect constitutional rights. Goonsuwan must merely
present his claim to the BIA first.15 This is not a case in
which there is no procedural mechanism presently available for
Goonsuwan to bring his claim. See Marcello v. INS, 634 F.2d 964,

14
Courts have enforced this principle with equal force in
habeas proceedings. See Hernandez v. Reno, 238 F.3d 50, 55 (1st
Cir. 2001) (“[A] district court should in general decline to
entertain a habeas petition challenging competency of counsel.”);
Liu v. Waters, 55 F.3d 421, 424-26 (9th Cir. 1995).
15
It is a bedrock principle of judicial review that a court
reviewing an agency decision should not go outside of the
administrative record. Florida Power & Light Co. v. Lorion, 470
U.S. 729, 743-44, 105 S.Ct. 1598, 1607 (1985). The review of BIA
orders is no different, § 106(a)(4) limits review of Board orders
solely to the administrative record. 8 U.S.C. § 1105a(a)(4). In
the present case, Goonsuwan’s claim of ineffective assistance of
counsel relies on evidence not presented to the BIA. He argues
that if his counsel had submitted the documentation provided by
Goonsuwan, Goonsuwan would have been granted a waiver of
deportation. The record established in the agency and submitted
to the district court in this case is not sufficiently developed
to make a proper determination of Goonsuwan’s claim. The record
submitted on appeal lacks even the transcripts from the relevant
hearings before the administrative agency. Under such
circumstances, even if not jurisdictionally barred, it would be
imprudent to preempt established administrative procedures and
decide Goonsuwan’s claim on an incomplete record.

15
971 (5th Cir. 1981). Through established administrative
procedures, Goonsuwan can seek to have his case reopened on the
basis of exceptional circumstances – the ineffective assistance
of counsel he received during and after his deportation hearing.
8 C.F.R. § 3.2(a) (“The Board may at any time reopen or
reconsider on its own motion any case in which it has rendered a
decision.”); see also Roque-Carranza, 778 F.2d at 1374
(suggesting that proof of attorney’s ineffectiveness would
satisfy the requirement that evidence could not have been
presented in the prior proceeding). Or perhaps, although we
understand this option is unlikely, the INS would join Goonsuwan
in filing a joint motion to reopen. 8 C.F.R. § 3.2(c)(3)(iii).
In any event, if the BIA improperly denies his motion to reopen,
Goonsuwan may then seek to vindicate his due process rights in
the federal courts. We are confident that when presented with
Goonsuwan’s compelling new evidence, the BIA will give his claim
due and proper consideration.
Judgment of the district court VACATED and REMANDED with
instructions that the habeas corpus action be DISMISSED.

16