Even if you carefully chose your immigration attorney, he or she might have made mistakes that negatively affected the outcome of your case. 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 happened to you, or a similar mistake, your attorney might have provided you with what's called “ineffective assistance of counsel.” This article describes the remedies available to you 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).
If you are a noncitizen and 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. 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 you from reasonably presenting your 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, and the asylum officer or Immigration Judge finds that you are ineligible because of an 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, your 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.
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 anyways. Immigration law is extremely complicated and in many types of cases, immigration officials and judges have discretionary powers to deny benefits and relief whenever they see fit.
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.
Still, a simple mistake is not necessarily “ineffective assistance of counsel” or even 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 clearly didn’t meet the basic educational requirements, and your attorney told you that you would qualify for the work 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.
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 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 might be able to bring a claim of ineffective assistance.
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. 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.
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:
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.