Actually, this article should be entitled “What can I do if my attorney failed to keep me from getting ordered Deported?” More and more people are coming in to my office after learning they have been ordered deported in absentia from the United States. In other words, an immigration judge held a deportation hearing that the alien, for some reason, did not attend and the judge therefore ordered the alien deported without the alien even being present. In the vast majority of these cases, the aliens claim that they never received notice of the hearing, even though they were represented by an immigration attorney at the time. In some of these cases, the alien knew of the hearing and told their attorney about it, but their attorney told them they didn’t need to show up. In either case, the alien is shocked to hear that they’ve been ordered deported and have come to me to see if anything can be done about it.
Whenever an alien has been ordered deported in absentia, the alien can ask the immigration judge to reopen the proceedings through a Motion to Reopen. However, the judge can only do so if the alien can prove that he or she received no notice of the proceedings, that he or she failed to appear due to death or extreme illness of either themselves or an immediate family member or that they failed to appear as a result of bad legal advice from their lawyer. This article intends to address only the last reason – that the alien failed to appear due to bad advice from their lawyer. In legal terms, this is called “ineffective assistance of counsel.” These motions are not favored by immigration judges, but can succeed if properly prepared.
Because so many aliens filed appeals based on ineffective assistance of counsel, the Board of Immigration Appeals has announced criteria for these motions. First, the alien must tell the judge precisely what he hired his lawyer to do. An attorney’s assistance is not “ineffective” if the alien never hired them to do whatever it is they are complaining about.
Second, if the lawyer’s wrongdoing constitutes a violation of his or her legal or ethical responsibilities, the alien must also file a complaint against that lawyer with the State Bar. A copy of the complaint must be provided to the lawyer so that he or she can respond to the charges made against them.
Since it might be difficult to imagine when it would be appropriate to file such a motion, the following is a factual summary of a case I recently handled. I filed a Motion to Reopen in the following case, based on ineffective assistance of counsel and the motion was granted by the immigration judge. To protect the anonymity of both my client and his former lawyer, we’ll call my client “Mr. Smith.”
Mr. Smith and his family entered the United States as visitors in 1990 and subsequently filed requests for Asylum in the United States. After waiting three years for an interview, Mr. Smith hired an attorney to help him. The attorney told Mr. Smith that the attorney would file a “labor certification application,” which, if approved, would mean that Mr. Smith would not have to return to the Philippines. However, the attorney never gave Mr. Smith a written contract – a requirement under California law. In addition, although Mr. Smith paid his attorney over $5,000.00 between 1993 and 1996, he did not know whether a labor certification application had been filed on his behalf.
In early May, 1996 Mr. Smith received a letter from the Immigration Court, stating that he had to go to court for a hearing. His attorney told him not to worry and that he would take care of it. The money Mr. Smith had paid for a labor certification could be used to get Mr. Smith voluntary departure.
However, Mr. Smith received a letter from the Immigration Court in June 1996 stating that he had been ordered deported. When he went to his attorney with this letter, the attorney told him again “not to worry,” because he could file a “Motion to Reopen” the deportation proceedings. Mr. Smith hired him to do the motion. However, Mr. Smith received another letter from the INS in August which said that he should report to INS on September 20, 1996 to depart to the Philippines. Mr. Smith was very surprised at this, since his attorney had told him not to worry, and that he would be able to get voluntary departure. On August 30, 1996 Mr. Smith received a letter from his attorney stating that he should go to INS on September 20, but that he needed to pay his attorney another fee. Mr. Smith did not understand why he needed to pay another fee just to be deported. Fortunately, this is when he brought his case to me.
In Mr. Smith’s case, his attorney had failed to “take care of” Mr. Smith’s deportation hearing and had also misadvised Mr. Smith to report to INS to be deported. Once I presented these facts to the Immigration Judge in my Motion to Reopen, the judge agreed that Mr. Smith had received “ineffective assistance” from his former attorney and granted my motion.
Of course, it is sometimes difficult to tell whether your attorney did everything you hired them to do to keep you from being deported and it is nearly impossible for a lay person to tell if their attorney violated his or her legal or ethical responsibilities. Accordingly, if you were represented by an attorney and were still ordered deported, you will have to have your case reviewed by a competent immigration attorney (obviously, not the one who got you ordered deported). They will be able to tell you whether a Motion to Reopen is possible, and what you need to do.
Since this process involves reporting the attorney to the State Bar, many aliens may be reluctant to pursue the matter because they don’t want to get their attorney in trouble. However, if the attorney’s assistance was truly ineffective, reporting him or her will help prevent this from happening to someone else. In addition, you need to decide what is more important, keeping your attorney out of trouble or keeping yourself in the United States. It seems to me that this is an easy question to answer.