Even if you carefully chose your immigration attorney, he or she may have made mistakes that affected the outcome of your case. These mistakes can include failing to respond to requests for evidence, not submitting the required documentation along with your application, or not competently explaining options available to you in removal proceedings. If so, your attorney may have provided you with “ineffective assistance of counsel.” This article describes the remedies that are available to you and how you may be able to reopen your immigration case so you can still receive the immigration benefit that you originally applied for (or should have applied for).
What Qualifies as Ineffective Assistance of Counsel
If you are a noncitizen and you decide to hire an attorney to represent you in a matter before Immigration Court or U.S. Citizenship and Immigration Services (USCIS), you have a due process right to competent representation. 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 you from reasonably presenting your case.
A classic example of ineffective assistance is when an attorney misses an important deadline that makes you ineligible for an immigration benefit. For example, your attorney forgets to submit an application for asylum within one year of your arrival in the United States, and the asylum officer or Immigration Judge finds that you are ineligible because of an unreasonable delay in filing. He or she may have also completed forms incorrectly, made false statements on your behalf, or presented fake documents with your application. If this is the case, 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, your criminal case must not be considered “final” (unable to be appealed on ineffective assistance grounds) in order to benefit. For more on this, see “Immigration Risks of Pleading Guilty or No Contest.”
A Denial Does Not Automatically Mean Your Attorney Made Mistakes
If you received a denial of your immigration case, appeal, motion, or application, your attorney may 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 requested. Sometimes an attorney does everything right, but your application is denied anyways. Immigration law can be very complicated and immigration officials and judges have discretionary powers to deny immigration benefits and relief whenever they see fit.
Mistakes May Not Rise to the Level of Ineffective Assistance But May Be Enough for Malpractice
Other times, the lawyer may make mistakes that aren’t enough to rise to the level of ineffective assistance of counsel, but may be enough for a complaint of attorney malpractice. In some cases, a simple mistake is not necessarily “ineffective assistance of counsel” or even enough evidence of malpractice.
If your attorney made a small mistake that was not the reason for the denial of your application, it will likely not be enough to rise to the level of ineffective assistance of counsel. For example, if your attorney included your incorrect address on your application for an employment visa and the visa is subsequently denied on other grounds, you cannot reopen your case based on ineffective assistance of counsel. It is also unlikely that the typo would be enough for a successful claim of malpractice.
However, if your visa was denied because you didn’t meet the educational requirements, and your attorney told you that you would qualify for the work visa based on the information that you provided, you may 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 After All
In some cases, your “lawyer” may not have been a licensed attorney at all. These “immigration consultants” are also known as notarios in the Spanish-speaking community. An immigration consultant may 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 him or her regardless, you cannot reopen your case based on “ineffective assistance of counsel.” If the consultant falsely represented himself or herself to be a lawyer, you may be able to bring a claim of ineffective assistance.
If There Was 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, you should talk to an experienced immigration attorney as soon as possible. You should 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 may miss deadlines that sometimes apply to new applications or court filings based on ineffective assistance of counsel. In addition, the court or government agency reviewing your case might decide that your request is not “timely,” (you acted too slowly), and will not allow you to 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 may 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 they 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 give him or her an opportunity to respond, and
- report whether a complaint of ethical or legal violations has been filed with the 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 his or her right to represent clients in Immigration Court proceedings.