Sanchez, Ana M. v. Mukasey, Michael B. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-2745 & 06-3424
ANA M. SANCHEZ,
Petitioner,
v.
PETER D. KEISLER, Acting Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A77 656 255
____________
ARGUED APRIL 2, 2007—DECIDED OCTOBER 4, 2007
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. In 2005, Congress amended the
Violence Against Women Act (“VAWA”) to make it easier
for victims of domestic abuse who face removal from the
United States to file motions to reopen their immigra-
tion proceedings. See Pub. L. No. 109-162, 119 Stat. 2960(2005). Ordinarily, strict time limitations apply to these
motions. See 8 C.F.R. § 1003.2(c)(2). For persons qualify-
ing under VAWA, however, Congress has lengthened the
period within which a motion to reopen may be filed, has
altered the numerical limit that applies to ordinary
motions, and has provided for a stay of removal upon the
filing of the motion. See 8 U.S.C. §§ 1229a(c)(7)(C)(iv)(III)
2 Nos. 06-2745 & 06-3424
(time), 1229a(c)(7)(A) & (C)(iv) (numerical limit),
1229a(c)(7)(iv) (stay). When Ana Sanchez tried to take
advantage of this law, however, she was rebuffed by the
Board of Immigration Appeals. The BIA found that her
motion to reopen was barred by the 90-day time limita-
tion set forth in 8 U.S.C. § 1003.2(c)(2); it rejected her
effort to invoke the special rules for battered spouses,
finding that she should have raised this point before the
immigration judge (IJ) and further finding that her coun-
sel’s failure to do so did not prejudice her. The BIA ruled,
in the alternative, that it would deny even a proper mo-
tion to reopen from Sanchez in the exercise of its dis-
cretion.
We conclude that the BIA’s first two reasons for deny-
ing the motion to reopen were based on legal error; VAWA
permits the filing of a motion to reopen such as Sanchez’s,
and the Board has the independent power to accept such
a motion, whether or not an attorney mentioned this law
before the IJ. Ordinarily, the fact that the BIA ruled in
the alternative that Sanchez’s case did not merit relief
as a matter of discretion would be enough to doom her
petition independently. Here, however, there was a prior
question that the BIA resolved incorrectly—whether
Sanchez’s attorney rendered ineffective assistance. We
conclude, on this record, that he did. The record on which
the BIA would have assessed its discretionary ruling
would have been quite different had the lawyer per-
formed adequately. We thus grant the petition for review
and return this case to the BIA for a re-evaluation of
the merits of Sanchez’s motion.
I
Ana Sanchez entered the United States on August 1,
1989, “without inspection,” as immigration specialists
would say. With the exception of a brief trip to visit her
Nos. 06-2745 & 06-3424 3
mother in Mexico in 1993, which was short enough not to
amount to a legal interruption of her residency, she has
remained in the United States ever since. In 1991, Sanchez
married Francisco Mendez, a legal permanent resident.
The couple had a daughter, Adanely Mendez, on December
23, 1991, but Mendez never petitioned to adjust Sanchez’s
status. Sanchez alleges that she suffered physical, emo-
tional, and psychological abuse at Mendez’s hands.
Sanchez and Mendez divorced on May 26, 1995.
Five years later, in February 2000, Sanchez met Robert
Bozynski, who was a manager at a car dealership at
which Sanchez and her sister purchased a vehicle. After a
number of calls from Bozynski, Sanchez agreed to go out
with him for dinner. The two began dating, and Bozynski
proposed marriage to Sanchez on several occasions. She
declined initially. In February 2001, the two went out
for dinner. Sanchez had two drinks over the course of
the evening, but they had a powerful effect on her. She
lost consciousness and woke up later in Bozynski’s bed,
with him on top of her. She had trouble opening her eyes
and could not defend herself; later, she concluded that
the drinks must have been drugged. When she tried to
discuss this incident with Bozynski, he insisted that the
sexual encounter was consensual.
A few weeks later, Sanchez went to Los Angeles with
Adanely and her sister to visit her sick father. During that
trip, she learned that she was pregnant. She informed
Bozynski of this fact as soon as she returned to Chicago.
He became upset and accused her of lying; he also ac-
cused her of cheating on him and having sex with an-
other man. Nonetheless, the discovery of the pregnancy
prompted Sanchez to agree to marry Bozynski; they were
married right away, on April 13, 2001.
Problems with the marriage surfaced quickly. Right after
the wedding, Sanchez, Bozynski, and Adanely took a trip
4 Nos. 06-2745 & 06-3424
to North and South Carolina. During this time, Bozynski
became rude and accusatory. He began to denigrate
Sanchez because she was a Mexican immigrant; he be-
came angry when she spoke Spanish to Adanely because
he could not understand what she was saying; he de-
manded that she return the wedding ring; and he threat-
ened to have her deported to Mexico by reporting her to
the immigration authorities. She believed that he was
angry because she was feeling ill as a result of the preg-
nancy and thus did not want to have sex during the trip,
but she complied with his request to return the ring.
When they returned to the Chicago area, Sanchez and
Adanely returned to their home in Maywood, Illinois, and
Bozynski stayed at his home in Crystal Lake. Before the
marriage, they had agreed that this would be their tempo-
rary arrangement, so that Adanely could finish the
school semester before moving to Crystal Lake. Bozynski
refused to provide medical coverage for Sanchez during
her pregnancy, because he took the position that the
baby was not his. Sanchez therefore applied for and
received public assistance in her own name. At the time,
Sanchez did have health insurance through her employer,
but it was under an assumed name. On November 20,
2001, Valerie Sanchez was born; DNA testing later
confirmed that Valerie is Bozynski’s daughter.
Relations remained bad between Sanchez and Boyznksi.
On April 22, 2002, Bozynski made good on his threat to
report Sanchez to the Immigration and Naturalization
Service. He told the INS that Sanchez “claimed to have
requested the marriage for the sole purpose of obtaining
lawful status in the United States. She informed the
complainant [Bozynski] that since she was now married
to him (a United States citizen) and pregnant with a
child to be born in the United States, there was nothing
anyone could do to remove her from the United States.”
Bozynski also told the INS that Sanchez was working
Nos. 06-2745 & 06-3424 5
under an assumed name. The next day, April 23, 2002,
Sanchez was arrested by the INS and served with a
Notice to Appear (“NTA”); she was released the same day
on her own recognizance. Bozynski and Sanchez were
divorced effective January 16, 2003.
The NTA included four factual allegations:
1. You are not a citizen or national of the United
States;
2. You are a native of Mexico and a citizen of Mexico;
3. You entered the United States at or near El Paso,
Texas on August 01, 1989;
4. You were not then admitted or paroled after
inspection by an Immigration Officer.
On the basis of those allegations, the INS charged
that Sanchez was subject to removal pursuant to
§ 212(a)(6)(A)(i) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(a)(6)(A)(i).
On July 3, 2002, Sanchez attended an initial master
calendar hearing, at which she was represented by Attor-
ney Ralph M. Schelly. On her behalf, Attorney Schelly
admitted the factual allegations in the initial NTA and
notified the IJ that Sanchez was going to apply for can-
cellation of removal as a battered spouse. The IJ ordered
the attorney to prepare the proper application and to
obtain the records of any criminal convictions she had.
The IJ scheduled another hearing for October 30, 2002.
On July 5, 2002, the INS added two more allegations to
the NTA: first, that Sanchez had been convicted of bat-
tery on August 4, 1995, in violation of 720 ILCS 5/12-3,
and second, that she had been convicted of battery on
December 21, 1994, in violation of the same statute. These
two convictions, INS asserted, made her removable under
§ 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), which
6 Nos. 06-2745 & 06-3424
covers inadmissibility for committing a crime of moral
turpitude. Sanchez denied that she had committed such
a crime. Later, on August 5, 2002, Sanchez was con-
victed in Illinois of possession of a fake identification
card, for which she was sentenced to six months’ court
supervision and community service and had her driver’s
license suspended. It appears that these charges were
not formally added to the NTA, but evidence of them
was eventually introduced into the administrative record.
On July 11, 2002, Sanchez filed applications for can-
cellation of removal under both 8 U.S.C. § 1229b(b)(1)
(covering ordinary cancellation) and § 1229b(b)(2) (covering
VAWA cancellation). At the October 30, 2002, hearing, the
IJ explained to Sanchez the difference between request-
ing cancellation generally and requesting cancellation
under the VAWA rules. The general rules require con-
tinuous physical presence within the United States for
10 years, good moral character, lack of convictions of
certain offenses, and a showing of exceptional and ex-
tremely unusual hardship to the U.S. citizen or permanent
resident spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).
The VAWA rules are more lenient. They require (as
applied to Sanchez’s case) the applicant to establish that
she was “battered or subjected to extreme cruelty” by a
spouse or parent who is a U.S. citizen or lawful permanent
resident, 8 U.S.C. § 1229b(b)(2)(A)(i), and that she had
resided continuously in the United States for a period of
three years, that she is a person of good moral character,
and that her removal would result in extreme hardship
to herself or her child. 8 U.S.C. § 1229b(b)(2)(A)(ii)-(iii).
At the end of the October 30 hearing, the judge con-
tinued the proceedings to see if Sanchez could qualify for
either type of cancellation.
Her hearing was not reconvened until August 19, 2004.
At that time, Attorney Schelly first attempted to present
documents relating to Adanely’s treatment for scoliosis
Nos. 06-2745 & 06-3424 7
at a local hospital, despite the fact that he had failed to
comply with a local rule requiring 10 days’ notice of this
type of proffer. The IJ then asked whether Sanchez
intended to pursue VAWA cancellation. Inexplicably,
Schelly said no and indicated that she was going to
apply only for ordinary cancellation. Schelly offered no
reason why his client would voluntarily forgo the more
lenient VAWA approach.
At the hearing, Sanchez testified about her presence in
the United States and about Adanely’s schooling and
health (including her scoliosis). She gave a brief state-
ment about her two battery arrests and convictions in
1994 and 1995 and admitted that she had been charged
and convicted for possession of a false identification card.
In response to questions from the IJ about her marriage
to Bozynski, she explained that she married him be-
cause she was pregnant with his child. She also noted
that she had gone to court to establish paternity. (The IJ
found that Bozynski was Valerie’s father.) Sanchez also
testified that Bozynski had paid a detective to follow her
for seven months, and that she was arrested when she
went to work one day. She also explained that she had
applied for public assistance while she was pregnant
because she wanted to use her true name, and to have her
true name appear on Valerie’s birth certificate. (It was her
insurance through her employer that reflected the pseud-
onym Maria Morato.) Through a proffer at the hearing, the
attorney from the Department of Homeland Security
(which by then had succeeded to the INS’s responsibilities)
presented Bozynski’s testimony. Bozynski claimed that he
had been duped about the marriage, that Sanchez lost
interest in him immediately after it took place, that he
had offered to pay for Valerie’s birth expenses, and that he
had witnessed Sanchez driving after she lost her license.
The IJ did not place significant weight on Bozynski’s
version of the events. He found that Sanchez had met the
8 Nos. 06-2745 & 06-3424
“exceptional and extremely unusual hardship” standard
and that there was no evidence that the marriage had
been a sham. He also found that Sanchez was not remov-
able as an alien convicted of a crime of moral turpitude,
because she was convicted only of simple battery. Nonethe-
less, as a matter of discretion he denied Sanchez’s ap-
plication for ordinary cancellation and granted Sanchez
60 days in which to depart voluntarily. Attorney Schelly
filed an appeal to the BIA from that order on Sanchez’s
behalf, but the Board affirmed the IJ’s decision without
opinion on September 20, 2005. Later, Schelly filed a
petition for review with this court, but it was dismissed
for lack of jurisdiction, based on 8 U.S.C. § 1252(a)(2)(B)(i),
on January 11, 2006.
Since the 2004 hearing before the IJ, Sanchez has
apparently turned her life around. She continues to reside
with her two daughters in Maywood, she has had no
more arrests or convictions, and she has a legitimate full-
time job. Adanely continues to receive treatment for her
scoliosis. She is a U.S. citizen; she has never been to
Mexico and speaks very little Spanish. She visits her
father regularly, and he has been paying child support
to Sanchez. Unfortunately, in 2004 Adanely was the
victim of unwanted sexual conduct by a 21-year-old male
when she was visiting her father’s house. Sanchez took
steps to have the offender prosecuted, and he was con-
victed of aggravated criminal sexual abuse in September
2004. Although Valerie lives with her mother, the divorce
decree awarded joint legal custody to Sanchez and
Bozynski; the court order forbids Sanchez from removing
Valerie from the United States. Bozynski has sought to
obtain sole legal custody over her, based on Sanchez’s
immigration status. Both Adanely and Valerie suffer
from anxiety. Sanchez is worse off: she has dysthymia and
post-traumatic stress disorder. She has also received
counseling at Sarah’s Inn, a domestic violence agency,
Nos. 06-2745 & 06-3424 9
since April 2002, and at Turning Point, another agency
for survivors of domestic violence.
II
This petition comes to us, as we noted earlier, primarily
from the BIA’s decision of June 16, 2006, denying her
motion to reopen her case. Sanchez filed her petition for
review on June 26, 2006, within 30 days of that decision,
which was docketed as case No. 06-2745. On August 16,
2006, the Board denied a motion to reconsider its June 16
order. Sanchez filed a petition for review from that deci-
sion on September 11, 2006; that case was docketed here
under No. 06-3424. We focus here on the June 16 order,
as the BIA’s later order simply reaffirmed it.
In our view, this petition requires us to decide the
following issues, in this order: (1) was Sanchez entitled to
present her argument that her lawyer’s performance was
prejudicial and below the standards recognized by the
Board itself in the motion to reopen; (2) if so, does sub-
stantial evidence support the BIA’s evaluation of that
argument; (3) was Sanchez prejudiced by the lawyer’s
waiver of her VAWA claim; and (4) must her petition
be denied in any event because of the Board’s state-
ment that it was denying her motion to reopen in the
alternative as an exercise of its discretion.
At the outset of these proceedings, Sanchez’s attorney
indicated that he was going to request both ordinary
cancellation of removal and VAWA cancellation. At this
point, however, at least one thing is clear: it is too late
for Sanchez to file her motion to reopen insofar as
she wishes to challenge the denial of ordinary cancella-
tion under § 1229b(b)(1). The regulations require that a
motion to reopen for this type of claim must be filed within
90 days of the Board’s decision. See 8 C.F.R. § 1003.2(c)(2).
10 Nos. 06-2745 & 06-3424
Because Sanchez’s motion was filed long after that 90-
day period elapsed, the BIA properly concluded that her
motion was untimely. Sanchez made no argument for
equitable tolling of that 90-day period, and thus we have
no need to consider whether she might have qualified
under that line of cases. See, e.g., Patel v. Gonzales, 442
F.3d 1011, 1016-17 (7th Cir. 2006). Although the Board
in its discretion might have decided to accept the late
motion, we have no jurisdiction over any discretionary
decision on its part not to do so. See Pilch v. Ashcroft, 353
F.3d 585, 586 (7th Cir. 2003); Ali v. Gonzales, 448 F.3d
515, 518 (2d Cir. 2006) (citing cases).
The more difficult question is whether the BIA properly
concluded, in effect, that Sanchez had waived the right to
seek VAWA cancellation when her attorney failed to
pursue that relief at the hearing held on August 19, 2004.
The BIA regarded this decision as a strategic one and
thus as not a ground for reopening. It also noted that
the relief that she was seeking in her motion was primar-
ily based on alleged abuse by her ex-husband that occurred
before August 2004, even though it acknowledged that
she was also attempting to rely on events that post-
dated that hearing.
It is important, at the outset, to recall the functions
played by motions to reopen and motions to reconsider. We
recently reviewed both of these devices:
Motions to reopen and motions to reconsider serve
distinct functions. . . . Motions to reopen ask the BIA
to reconsider its earlier decision based on “facts or
evidence not available at the time of the original
decision,” . . . ; they do not challenge the correctness
of an earlier decision based on the existing
record, . . . . By contrast, the basis of a motion to
reconsider is a contention that “the original decision
was defective in some regard.” . . . Motions to recon-
Nos. 06-2745 & 06-3424 11
sider ask the BIA to reexamine its earlier decision
“in light of additional legal arguments, a change of
law, or an argument that was overlooked.” . . .
Therefore, in considering such motions, the Board
places itself “back in time and consider[s] the case
as though a decision in the case on the record before
[it] had never been entered.”
Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007).
In this case, Sanchez is attempting to introduce new
evidence—that of her attorney’s substandard and prejudi-
cial performance—that was not available at the earlier
hearing. An analogy to cases claiming ineffective assis-
tance of counsel in the criminal context is useful: this
court regularly reminds counsel that a direct appeal is
not the right time to raise such a claim, because the rec-
ord is almost always too sparse. Only with the new
evidence that can be developed using a motion under 28
U.S.C. § 2255 can counsel’s effectiveness properly be
evaluated. We recognize that the substantive standard
for assessing effectiveness of counsel is different in
immigration cases, where it is derived from the immigra-
tion statutes and regulations and ultimately the Fifth
Amendment’s due process clause, than it is in criminal
cases, where the Sixth Amendment applies. Nevertheless,
the fact that new evidence is necessary is the same.
The BIA’s consideration of Sanchez’s assertion that
counsel rendered ineffective assistance is what caused it
to conclude that she had waived her VAWA claim. We
therefore take up that topic first. In Matter of Lozada, 19
I&N Dec. 637 (BIA 1988), the BIA both recognized that
such a claim is possible in an immigration proceeding
and described the materials that it would require to
support this allegation. Id. at 638-39. Although the Board
in Lozada said that the legal basis for a complaint
about ineffectiveness of counsel rests ultimately in the
Fifth Amendment’s due process clause, id. at 638, we have
12 Nos. 06-2745 & 06-3424
no need to decide where the constitutional boundaries
for this kind of claim lie. It is enough that aliens have
a statutory right to retain counsel, and that adequacy of
representation is an important factor in assuring that the
statutory right to a fundamentally fair proceeding is
respected. See, e.g., Gjeci v. Gonzales, 451 F.3d 416, 420-21
(7th Cir. 2006). The Board itself enforces the right to
counsel in proceedings before it through, among other
things, recognition that relief is possible when counsel
is so deficient that the proceedings become funda-
mentally unfair. One recognized way in which this
might occur is interference with the alien’s statutory
right to “a reasonable opportunity . . . to present evidence
on [her] own behalf.” 8 U.S.C. § 1229a(b)(4)(B). See also
Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003).
Sanchez’s motion to reopen included everything the
Board requires: (1) an affidavit from Sanchez setting
forth the relevant facts, (2) a detailed description of her
agreement with Attorney Schelly and describing the
services he failed to provide, (3) proof that she informed
Schelly of the allegations and gave him a chance to
respond, and (4) proof that she filed a grievance with the
Illinois Attorney Registration and Disciplinary Commis-
sion on March 3, 2006.
The central question we must therefore answer is
whether the BIA’s conclusion that Attorney Schelly’s
assistance was effective under the standards established
in Lozada was supported by substantial evidence. The
BIA admitted that it was not “clear from the record
precisely why [the decision to forgo a request for VAWA
relief] was made.” It concluded, however, without any
basis, that Schelly must have made a strategic decision to
forgo this theory in favor of voluntary departure. But
whatever else Schelly was thinking, the record shows
that it could not have been that. At the end of the hear-
Nos. 06-2745 & 06-3424 13
ing before the IJ, the following exchange took place
between Schelly and the judge:
Judge: Mr. Shelly [sic], I assume you’re going to
reserve appeal for your client?
A: Yes.
Judge: We never really discussed Voluntary Departure
on the record as an option here. So I granted it to the
respondent, assuming you were seeking that as an
alternative. Is that correct?
A: That is correct.
In other words, Schelly was happy to get voluntary
departure for his client when the IJ offered it on a silver
platter, but he certainly had done nothing to suggest that
he had even thought of it, much less to indicate that he
had made a strategic decision to abandon a promising
ground of full relief in favor of this minor administrative
advantage. There is simply no basis on which to support
the Board’s conclusion that Schelly was exercising any
professional judgment at all when he abandoned the
VAWA theory.
We also see no way to avoid the conclusion that this
decision seriously prejudiced Sanchez. From her stand-
point, the pursuit of VAWA cancellation could only have
helped. The procedural requirements, as we have already
noted, are significantly relaxed for this type of relief.
The only extra substantive burden she would have under-
taken would have been to prove the spousal abuse, which
she was prepared to do and of which she proffered ex-
tensive evidence in her motion to reopen. (The government
suggests that she might have been trying to keep the
unfavorable evidence about her battery convictions and
use of false identification out of the record, but it points
to nothing in the law that would have justified exclud-
14 Nos. 06-2745 & 06-3424
ing these materials, and indeed they were not excluded
even though she did not raise the VAWA claim.) The IJ
had signaled his willingness to entertain the VAWA
motion, and there was no reason to think that the inclu-
sion of a VAWA claim would have predisposed the judge
against her. In fact, the IJ made a number of important
findings in Sanchez’s favor. He found “that [Sanchez’s]
convictions for battery do not constitute crimes involv-
ing moral turpitude and do not preclude [Sanchez’s]
eligibility for Cancellation of Removal under Section
240(A)(b) [sic].” AR at 862. He also listed a number of
factors that cut in favor of Sanchez’s claim, including
her continuous residence in the United States, her cur-
rent full-time employment, her support of her two U.S.-
citizen children, and Adanely’s medical needs. AR at 863-
65. The IJ was concerned, however, that Sanchez had
not presented any affidavits from her current employer
or evidence from her relatives. Notably, Sanchez’s
sister and brother-in-law were present at the hearing, but
for unexplained reasons Schelly did not call them to
testify. Schelly also failed to collect Adanely’s school
records and thus was unable to produce them when the
judge asked for them.
On the negative side, the judge reviewed Sanchez’s two
battery convictions and her conviction for possession of
false identification documents. He was concerned that
after the latter offense, she was caught driving without
a license. She admitted that she had done so because
she needed to get to work. The judge also weighed against
her the fact that she applied for public assistance under
her own name when she was pregnant with Valerie,
instead of using the insurance she had with her employer
under an alias. Last, the judge thought that she had
not filed income tax returns, because she did not present
any returns at the hearing.
Nos. 06-2745 & 06-3424 15
Unbeknownst to the IJ, Sanchez in fact had filed her
income tax returns and had furnished them to Schelly. See
AR at 571-621. Schelly just failed to introduce them into
the record. The IJ did not note, probably because Schelly
did not point out, the fact that removal would require
Sanchez to abandon Valerie as a result of the divorce
decree. Had Schelly been pursuing VAWA relief, it is
likely that this fact would have been at the forefront of
the proceedings instead of lost. Nor did the IJ have be-
fore him all the evidence of domestic abuse that was
later gathered, including sworn affidavits, letters from
the two shelters, police reports, and the psychological
evaluation. Bozynski, for example, became upset on the
honeymoon trip when Sanchez refused his sexual ad-
vances in front of Adanely. He spurned Valerie until the
court-ordered DNA tests proved that she was his, just as
Sanchez had said. There was evidence showing that
Valerie fears her father, and that he hit her with a shoe
when she wet the bed.
We do not know whether, with all the facts properly
before him and the backdrop of VAWA cancellation as the
legal basis of the claim, the IJ would once again weigh all
the evidence and conclude that Sanchez does not merit
cancellation as a matter of discretion, or if, in the light
of a proper record, he might weigh all the evidence and
come to the conclusion that she does merit VAWA cancella-
tion. All we can say is that the attorney’s performance
here was so deficient that Sanchez did not have the fair
hearing to which the immigration statutes entitle her.
By the same token, the BIA’s decision that it would deny
the motion to reopen in the exercise of its discretion
necessarily rests on the flawed record that was prepared
before the IJ. The BIA, for example, shared the erroneous
perception that Sanchez had failed to file tax returns for
a 10-year period. It gave no weight at all to the substan-
tial abuse that Sanchez and her two U.S.-citizen
16 Nos. 06-2745 & 06-3424
daughters have suffered, nor did it display any concern
about the possibility that the daughters would have to be
turned over to the alleged abusive parent if Sanchez’s
removal was not cancelled. It is not our role to tell the
BIA how it is supposed to weigh these factors. But, having
found that counsel was ineffective for abandoning the
VAWA theory for no explicable reason, and that the
record before the IJ (and thus the record that went to the
BIA) was woefully incomplete, we conclude that further
proceedings are necessary so that the proper authorities
can evaluate the legal claims and exercise their discre-
tion on the basis of a presentation that is fair to the alien.
For these reasons, we GRANT the petition for review and
return this case to the BIA for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-4-07