By Robert L. Reeves and Nancy E. Miller
When someone needs legal assistance, he usually attempts to find an attorney. Once he has decided to hire a particular attorney, he places all his trust in that lawyer. When he hires an attorney who is well qualified to handle the legal problem, the trust is well-placed. Unfortunately, sometimes, the person hired is not really an attorney. Then the client is at the mercy of someone who is not trained or qualified to assist him with his legal problem.
This situation is especially pronounced in the area of immigration law. In many countries, the term “Notary Public” or “Notario” means that the person is an attorney. That term does not have the same meaning in the United States. Notary Publics are commissioned by the state to notarize documents (i.e. to state that a document really was signed by the person whose signature is on the document). The Notary Public does not undergo the necessary legal training and is not qualified or allowed to represent anyone regarding a legal problem. Non-lawyer representatives are also known as immigration consultants. Whatever they call themselves, the problems that arise from their representation are the same.
The non-lawyer representatives often file applications for relief for which the alien is not eligible. They may file for asylum where the alien does not have a well-founded fear of returning to his home country. They may file for cancellation of removal despite the fact that the alien has not lived in the United States for a period of ten years or does not have a qualifying relative (parent, spouse or child who is a U.S. citizen or green card holder) who would suffer exceptional and extremely unusual hardship if the alien had to leave the U.S. If the alien does not have a qualifying relative, he will be ordered deported. The same results will occur if the qualifying relative’s hardship does not meet the very high standard required for cancellation of removal.
Very often problems arise because the non-lawyer representative gives an incorrect address for the alien on an asylum application. Sometimes that address is the representative’s. As a result of the filed application, the alien may be referred to the Immigration Court. A notice is sent to the address on the application telling the alien when and where to go to court. Not infrequently, the representative is no longer at that address. Even when he is, it is not unusual for the consultant not to tell the alien that he has to go to court. Sometimes the consultant goes even farther and tells the alien that he should not go to court. When the alien does not go to his hearing, he is ordered deported in absentia (in his absence). It does not matter that the alien did not get notice of the hearing as long as the notice was sent to the address on the application. As long as the notice was sent to the alien’s representative or to the last known (given) address of the alien, the alien is considered to have received notice.
If an alien is ordered deported because he did not attend his hearing, his only remedy is to file a motion to reopen his deportation court case. A motion to reopen the court case must be filed within a certain amount of time. If the notice is not filed on time, the immigration judge will not reopen the case and the alien will not be able to apply to the immigration judge for relief for which he might be eligible. That means that the alien will have to leave the United States and may not be eligible to return for a period of ten years.
The 9th Circuit Court of Appeals has held that, if the motion to reopen is filed late because of ineffective assistance, the time limit may not apply. However, the court has also held that if the alien knowingly hires someone who is not an attorney, he cannot then blame the ineffective assistance that he received on the fact that the person was not an attorney. In other words, in hiring a non-lawyer, the alien assumed the risk that he would not be adequately represented.
The Court has also said that, if the alien was not in court and did not hear the oral notice of the consequences of failing to appear, he is able to apply for relief, such as, adjustment of status, cancellation of removal and voluntary departure, if he is otherwise eligible. Case law has also held that if an alien notified the government of his correct address through some process (such as work authorization applications), the government is on notice of the correct address and should send mail to the alien at that address.
This means that there may be hope for someone who has a final deportation order because his non-lawyer representative did not tell him to go to court. An alien who has been represented by an unlicensed representative should consult a licensed, knowledgeable and experienced immigration attorney to make sure that no deportation orders have been issued against him. Anyone who was represented by a non-attorney and knows that a deportation order was issued against him should seek the advice of an experienced immigration law attorney as soon as possible in order to see if the case can be reopened and the order reversed.