Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel

When it comes to immigration law, there are a few circumstances in which parties can make a motion with the court to reopen their case. One of these circumstances is when you were given ineffective assistance of counsel by your attorney during your case.

To successfully prevail on a motion to reopen your case based on ineffective assistance of counsel, there are specific requirements for what you must prove. Having an attorney with experience handling these types of cases on your side is a great way to give yourself the best chance at a successful outcome.

If you are wondering whether it is possible to move forward with an Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel, it is crucial to speak with an experienced New York immigration attorney right away. Like in many cases, there are certain filing deadlines that must be met for any Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel, so it is important to talk to a lawyer about this matter as soon as you can.

Feiner & Lavy, P.C., Attorneys at Law – Immigration Lawyers

The New York immigration attorneys of Feiner & Lavy, P.C., Attorneys at Law have dedicated their careers to helping people with their immigration legal needs. At Feiner & Lavy, we work hard to fight for our clients’ legal rights, and we are committed to helping our clients achieve the best resolution for their cases.

If you have been impacted by the ineffective assistance of counsel and are considering an Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel, contact us today. There are certain filing deadlines that must be met regarding this legal issue, as well as many others, so it is essential to reach out to an attorney as soon as you can.

 

What Is Ineffective Assistance of Counsel?

In criminal cases, people who are accused of committing crimes are entitled to the assistance of legal counsel for their defense, pursuant to the Sixth Amendment to the United States Constitution. The Supreme Court further established that individuals accused of a crime are guaranteed the right to effective assistance of counsel.

Since immigration proceedings are generally civil in nature, not criminal, the Sixth Amendment right to effective assistance of counsel is not applicable in this sense. However, courts have established that if the legal services that are provided in an immigration case are unreasonably deficient and are determined to be fundamentally unfair, the lawyer providing these services may be in violation of the Constitution.

If this is the case, the noncitizen who received the fundamentally unfair legal services may be entitled to recourse against their former attorney. Put another way, if an immigration attorney makes a severe error while representing a client in a manner that substantially harms the case, that client may be able to appeal the decision based on ineffective assistance of counsel.

What Should I Do If I Lost My Case Because of Ineffective Assistance of Counsel?

If you lose your case due to the ineffective assistance of your legal counsel, there are certain procedures that you must follow if you wish to reopen your case. The first step is to file a motion to reopen the removal proceedings. To do this, it is helpful to have an Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel.

A successful motion must comply with the general requirements according to the statute and regulations, but also with certain procedural requirements, which include:

  • Prior to filing the motion, the Respondent must inform their (former) counsel of the allegations and give them an opportunity to respond. Any response by the counsel should be included in the motion.
  • A supporting affidavit to the motion to reopen by the Respondent attesting to the relevant facts. A statement of the agreement between the Respondent and the attorney with respect to the representation should be included within the affidavit.
  • The motion should indicate whether a complaint has been filed with the appropriate disciplinary authorities regarding the representation and, if not, an explanation as to why not.

There are also some other procedural requirements to be aware of when filing a motion to reopen based on ineffective assistance of counsel. Under most circumstances, a noncitizen may only file one motion to reopen, and it must be filed within 90 days of the final order of removal. One such exception is when a noncitizen files a motion to reopen an in absentia order of removal that is based on an exceptional circumstance that caused their failure to appear—including ineffective assistance of counsel—in this case, the motion must be filed within 180 days.

In light of the above, there are also some other unique circumstances that may allow a noncitizen to file a motion to reopen that would otherwise have been considered untimely. These motions may be allowed under the doctrine of equitable tolling, in some cases. The doctrine of equitable tolling gives courts the power to extend non-jurisdictional filing deadlines when the claimant has acted diligently in pursuing their rights, but there was an extraordinary circumstance that caused the motion to be untimely filed. Some courts consider ineffective assistance of counsel an “extraordinary circumstance.”

Due to the complex nature of these procedural rules, it is always advisable to talk to an experienced immigration attorney before moving forward with an Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel. An immigration attorney with experience practicing in your jurisdiction will have a deeper understanding of how judges there are ruling on these types of matters and can provide you with more personalized advice about your case.

Am I Required to File a Disciplinary Complaint Against My Attorney in Order to Prevail on My Motion to Reopen?

Based on the case law precedent established in Matter of Lozada, there is a requirement that the Respondent either file a complaint against their former (or current) counsel with the appropriate disciplinary authorities or give a sufficient explanation for why they did not do so. In 2020, the Board of Immigration Appeals ruled more specifically on this issue, establishing that, in most cases, a respondent must file a complaint with the bar association that has disciplinary authority over the attorney that they claim was ineffective in order to successfully prevail on an ineffective assistance of counsel claim. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020).

Although there are some circumstances in which courts will still grant a motion to reopen even though a complaint has not been filed against the attorney in question, these cases tend to be limited to situations in which the explanation provided by the respondent that a complaint was not filed was deemed sufficient for reasons such as that attorney had already been disbarred or was deceased. So, while filing a complaint against your attorney with the appropriate disciplinary authorities is not an absolute requirement, it is strongly recommended. For more information about ensuring that you meet this requirement before filing an Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel, speak with an experienced New York immigration attorney.

How Do I Prove That I Received Ineffective Assistance of Counsel?

The standard guidelines for determining whether a party received ineffective assistance of counsel in an immigration proceeding were established by the Board of Immigration Appeals in 1988 in a case called Matter of Lozada. Lozada, 19 I&N Dec. 637 (BIA 1988).

Matter of Lozada established that certain substantive requirements must be met in order to demonstrate that a party received ineffective assistance of counsel. These requirements include:

  • Counsel’s performance was deficient;
  • Counsel’s performance caused prejudice to the client.

 

In immigration cases, a claim of ineffective assistance requires a noncitizen to show that they were prevented from reasonably presenting their case and that they were prejudiced by their counsel’s performance. Regarding the ineffectiveness aspect, it is not enough to have subsequent dissatisfaction with a strategic decision of counsel. When determining whether there has been ineffective assistance of counsel, courts tend to consider whether competent counsel would have acted differently. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004).

What Kinds of Things Are Considered “Deficient Representation?”

Some examples of deficient representation that were found to contribute to or establish a claim of ineffective assistance in an immigration matter include the following:

 

  • Failure to timely submit relevant evidence, or to submit sufficient evidence.
  • Misinforming a client about a scheduled hearing or advising a client not to attend a hearing.
  • Failure to pursue a particular form of relief or to file an application for relief.
  • Pressuring a client to accept voluntary departure by threatening to withdraw from the case.
  • Advising a client to forfeit the right to appeal or making admissions without any tactical advantage.
  • Failed to take action to ensure that a client would remain eligible for relief.
  • Failed to file a timely notice of appeal or an appeal brief.

How Do I Establish That I Was Prejudiced as a Result of My Lawyer’s Performance?

In most cases, after it has been established that your prior attorney’s performance was deficient, you will also need to show that you suffered prejudice as a result. However, the main exception to this requirement is that you do not need to show prejudice when your attorney’s ineffectiveness resulted in the entry of an in absentia order of removal.

 

It is often harder to prove that your attorney’s performance prejudiced you, than the first prong, that their performance was deficient to some degree. There are slightly different standards for establishing prejudice depending on which court circuit you are in. Generally, the court will consider whether there is a reasonable probability or reasonable likelihood that the proceedings would have resulted in a different outcome had it not been for the attorney’s performance.

 

In one 5th Circuit case example, the Court determined that proving prejudice would require the Petitioner to make a prima facie showing that had the application been filed, he would have been entitled to relief from deportation. Miranda-Lores v. INS, 17 F.3d 84, 85. (5th Cir. 1994). In the 6th Circuit, the Court found that a noncitizen must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States. Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006). However, in the 9th Circuit Court of Appeals, the Court held that prejudice requires a showing that deficient performance may have affected the outcome of the proceedings, and a noncitizen need only show plausible grounds for relief. Before you initiate an Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel, be sure to consider the standard relevant to your case.

 

Additionally, there are some jurisdictions that treat ineffective assistance claims that are related to discretionary relief differently. However, in these cases, noncitizens may still be able to pursue their claims before the Board of Immigration Appeals or immigration courts.

How Do I Move Forward with An Immigration Lawyer Motion to Reopen Based on Ineffective Assistance of Counsel?

If you have received a final order of removal, and you believe that you lost your case due to ineffective assistance of counsel, you should reach out to an immigration law attorney right away to discuss your case. Keep in mind that you will not only need to show that your attorney provided you with ineffective assistance, but you will also need to demonstrate that you were prejudiced from it as a result. In many jurisdictions, this means that you will have to show that there was at least a reasonable likelihood that the outcome would have been different had it not been for your attorney’s performance.

 

Contact us today at Feiner & Lavy, P.C., Attorneys at Law, for a consultation to learn more about how we can help you move forward with a motion to reopen your case or with any other immigration law-related matter.

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