By Robert L. Reeves & Nancy E. Miller
It has been said that immigration laws and regulations are aptly called a labyrinth that only a lawyer could navigate. Recognizing that aliens have difficulty in presenting their cases forcefully and effectively, the courts have held that aliens have a due process right to competent legal counsel. This due process right stems from the attorney’s unique role in removal proceedings and other immigration-related transactions.
The courts and the Board of Immigration Appeals have recognized that attorneys are more familiar with the standards and factors an immigration judge examines and can present evidence more effectively. In addition, attorneys have special competence and duties to represent their clients. Attorneys are held to professional standards and obligations. They have a duty to bring sufficient skill and knowledge to render a trial a reliable adversarial testing process. In other words, the lawyer is obligated to exercise his or her knowledge and skill in order to present the strongest legally-valid case possible.
When the lawyer fails to render competent assistance and the client is prejudiced (harmed) by that failure, the client can file a motion to reopen to seek a new trial. The request is made upon the assertion that the attorney’s representation was outside of the wide range of professionally-competent assistance and was not the result of reasonable professional judgment. It is called “ineffective assistance of counsel”.
The Ninth Circuit Court of Appeals has recently held that, because an attorney’s special competence and duties lie at the heart of an ineffective assistance of counsel claim, the claim can not be raised when an alien knowingly relies on the assistance of a non-lawyer.
Relying on non-lawyers (sometimes known as “legal consultants”, “immigration consultants” or “notarios”) is dangerous. Legal consultants do not undergo necessary legal training and are not qualified to represent anyone regarding a legal problem. In fact, they are not permitted to appear in court or at Citizenship and Immigration Services offices. Recently, an immigration consultant named Romina Zadorian was arrested and is facing 51 counts of theft, forgery and identity theft in connection with her purported representation of immigrants. In addition, the files of an immigration consultant named Evelyn Sineneng-Smith were seized by ICE/DHS.
Many problems arise when the “consultant” files an application with an incorrect address for the alien. If the alien is referred to immigration court as a result of that filing, the notice telling the alien when and where to go to court is sent to the address on the application. It is not unusual for the notario to either tell the alien that he should not go to court or to simply not tell him that he needs to go to court. When the alien does not go to his hearing, he is ordered deported in absentia (in his absence). It doesn’t matter that the alien didn’t get a notice of the hearing. As long as the notice was sent to the alien’s representative or to the address given by the alien, the alien is considered to have received notice.
Even if the alien does go to his hearing, the notario will not be permitted to represent him in the courtroom. He will be on his own. That is what happened to Gerardo Hernandez and Elizabeth Prado. Their notario told them that they did not need to call witnesses, provide expert testimony or submit documents in support of their application for relief. Not surprisingly, the immigration judge denied their applications. When they obtained competent counsel and filed a motion to reopen based on ineffective assistance of counsel, the motion was denied. On appeal, the Ninth Circuit said that non-attorney immigration consultants simply lack the expertise and legal and professional duties to their clients that are necessary preconditions for ineffective assistance of counsel claims. The court went on to say that if an alien chooses not to retain an attorney and knowingly relies on assistance from individuals not authorized to practice law, such a voluntary choice will not support a due process claim of ineffective assistance of counsel.
The result of that decision is that, if an alien knows the person he is hiring is not a lawyer and relies on that person anyway, no matter how bad the representation is, the alien will not be able to claim ineffective assistance of counsel. If the consultant pretended to be an attorney, ineffective assistance may still be an option. Even if the alien was aware that the representative was not a lawyer, the alien may be able to raise other due process claims. Those assessments must be made by a competent attorney.