What to Do If You Suspect Your Immigration Attorney Has Made Mistakes in Your Case

Even though you carefully chose an immigration attorney, that person might have made mistakes that negatively affected the outcome of your application for a visa, green card, or other immigration benefit. Common mistakes clients complain of include the attorney failing to respond to requests for evidence, not submitting the required documentation along with the immigration application, or not competently explaining options available in removal proceedings.

If one of these has happened to you, or something similar, your attorney might have provided you with what's called "ineffective assistance of counsel."

This article describes:

• the remedies available to you after experiencing ineffective assistance of counsel, and
• how you might be able to reopen your immigration case so you can still receive the immigration benefit that you originally tried to apply for (or that you should have applied for).

What Qualifies as Ineffective Assistance of Counsel in the Immigration Context

Noncitizens who hire an attorney to represent them in a matter before the Immigration Court (EOIR) or U.S. Citizenship and Immigration Services (USCIS), have a due process right to competent representation. But attorneys vary in quality, and sometimes the noncitizen doesn't receive the high-quality treatment they hoped for. Not every example of mediocre service is considered inneffective assistance of counsel, however.

To be considered "ineffective," the attorney's poor performance (or lack of performance) must have materially affected the outcome of the proceedings and have been so fundamentally unfair that it prevented the noncitizen from reasonably presenting the case.

A classic example of ineffective assistance is when an attorney misses an important deadline that makes someone ineligible for an immigration benefit. For example, let's say your attorney forgets to submit an application for asylum within one year of your arrival in the United States (the normal deadline), and the asylum officer or Immigration Judge concludes that you are ineligible for asylum because of the unreasonable delay in filing. Your attorney might have also completed forms incorrectly, made false statements on your behalf, or presented fake documents with your application.

If any of the above describes your situation, you might be able to get your immigration case "reopened" or be given the opportunity to submit a new application or additional evidence to support your petition for an immigration benefit.

An attorney's failure to warn clients about the immigration consequences of pleading guilty or no contest to criminal charges is also considered ineffective assistance of counsel. However, the criminal case must not be considered "final" (unable to be appealed on ineffective assistance grounds) in order to benefit from this. For more on this, see Immigration Risks of Pleading Guilty or No Contest.

A Denial From the U.S. Government Does Not Automatically Mean Immigration Attorney Made Mistakes

If you received a denial of your immigration case, appeal, motion, or application from the U.S. government, your attorney might seem like the natural person to blame. But don't be too quick to assume that your attorney made mistakes just because you did not receive the benefit you hoped for and requested.

Sometimes an attorney does everything right, but the application is denied anyway. Immigration law is extremely complicated, with narrow avenues for approval. In many types of cases, immigration officials and judges have discretionary powers to deny benefits and relief whenever they see fit.

Mistakes Might Not Rise to the Level of Ineffective Assistance But Might Be Enough for a Malpractice Lawsuit

Sometimes, a lawyer might make mistakes that aren't enough to rise to the level of ineffective assistance of counsel, but might nevertheless be enough for a complaint of attorney malpractice.

If, for example, your request for a nonimmigrant work visa was denied because you clearly didn't meet the basic educational requirements, and your attorney told you that you would qualify for the visa based on the information that you provided, you might be able to get other forms of relief, such as a refund of legal fees and application fees.

This can be done through a complaint for attorney malpractice. For more information, see Suing Your Lawyer for Malpractice.

What Happens If Your Lawyer Wasn't Really a Lawyer at All

In some cases, the "lawyer" might not have been a licensed attorney in the first place. These "immigration consultants" are also known as notarios in the Spanish-speaking community. An immigration consultant could have made mistakes in your case or even charged you lots of money to apply for benefits for which you did not qualify, which put you at risk of being placed into removal proceedings.

Unfortunately, the courts have held that if you knew that your representative was not licensed to practice law and you hired the lawyer regardless, you cannot reopen your case based on "ineffective assistance of counsel." If the consultant falsely represented themself as a lawyer, you might be able to bring a claim of ineffective assistance.

In Cases of Ineffective Assistance of Counsel, Seek a New Attorney Right Away

If you suspect that that your attorney provided you with ineffective assistance that led to the denial of a benefit you otherwise would have qualified for, talk to an experienced immigration attorney as soon as possible. Do not attempt to fix what your former attorney did wrong on your own. A good immigration attorney can investigate your case, review any submissions for errors, and determine whether or not your original attorney was licensed to practice law.

If you do not act quickly, you might miss deadlines that apply to new applications or court filings based on ineffective assistance of counsel. In addition, the court or government agency reviewing your case could decide that your request is not "timely" (you acted too slowly), and refuse to let you reopen your case or submit new applications or evidence.

Reopening Your Case Due to Ineffective Assistance of Counsel

Once you have a professional opinion about the mistakes your former attorney made, you will want to "fix" your case and try to achieve any legal remedies or compensation available to you. If you have been the victim of ineffective assistance of counsel, you might be able to reopen your case, even if the deadline for appeal has passed. The Matter of Lozada case set forth the requirements for noncitizens who claim to have been unfairly prejudiced by ineffective assistance of counsel. You must:

• provide an affidavit describing in detail the agreement you entered into with counsel and the representations that the attorney made to you regarding your case
• inform your former attorney of the allegations and provide an opportunity to respond, and
• report whether a complaint of ethical or legal violations has been filed with the professional bar where your attorney is licensed to practice law, and if not, why you did not do so.

In addition, if your attorney provided you with ineffective assistance in removal (deportation) proceedings, you should file an attorney complaint with the Executive Office for Immigration Review (EOIR). The agency will review the allegations and determine whether they are serious enough to sanction the attorney by taking away their right to represent clients in Immigration Court proceedings.