If your counsel failed to provide you with appropriate legal help and caused you to be issued with the removal order, it may set the ground for a new hearing.
In an Immigration Court, a respondents’ case relies heavily on their immigration lawyer; likewise, a criminal defendant depends on a defense of his or her attorney. The role of a lawyer, in this case, is to present the necessary evidence and make the appropriate legal arguments.
Yet, a lawyer may fail to represent you accurately, and you may have been ordered deportation as a result. If this happened a long time ago and you missed 30-day deadline to appeal your removal order, you can still be able to reopen your case.
According to the Board of Immigration Appeals, the stated purpose in Matter of Lozada is to protect the immigrants’ due process rights and the integrity of removal proceedings. This case established a framework for deciding claims of ineffective assistance.
The process for successfully reopening a deportation case based on the ineffective assistance of an attorney is a complicated matter.
There are two things that your new lawyer has to do on your behalf. Your lawyer will have to:
- File a complaint with your former attorney’s state bar association;
- File the detailed motion with the Immigration Judge or the Board of Immigration Appeals.
There are three prongs of the Matter of Lozada’s test that an immigrant has to meet to perfect a claim:
- There must be an affidavit that supports the allegations: a detailed agreement that the immigrant entered into with counsel concerning the actions attorney should take and what representations have or have not been made to the respondent;
- The representative whose competence is challenged must be informed of the allegations and has to get an opportunity to respond;
- The motion to reopen must confirm that a formal complaint has been filed with appropriate State Bar authorities concerning the lawyer’s ethical or legal responsibilities; if not, it must reflect why.
But, not all allegations of an attorney’s performance will be straight-forward. The courts may find tricky unraveling the facts of what happened, and immigration judges have to review such claims carefully and avoid frivolous, exaggerated, or unjustified claims against prior counsel. Thus, it is essential to seek help from experienced immigration attorneys.
Types of Ineffective Assistance
There are three types of ineffective assistance by attorneys in immigration cases.
- Malfeasance- intentional conduct that is wrongful or unlawful.
- Nonfeasance- the failure to act when there was a duty; the failure to do what had to be done.
- Misfeasance- performance of lawful action, but in an improper or deficient manner.
Ineffective Assistance Based On Malfeasance
This is the most seriously defective assistance from a moral and ethical perspective.
Since malfeasance is a dishonest abuse of professional trust, most courts would undoubtedly declare such actions to be ineffective assistance of the representative.
Ineffective Assistance Based On Nonfeasance
Likewise, nonfeasance, the failure to do what had to be done, is also a relatively easy call for most courts. This is because acts of nonfeasance are either deliberate or inadvertent.
A deliberate act of nonfeasance is a lawyer’s negligence of his obligation to protect the clients. Still, it depends on the circumstances whether the attorney’s failure to take specific actions is a careless act of nonfeasance that may be excusable.
Ineffective Assistance Based On Misfeasance
Claims of lawyer misfeasance are usually the most difficult for a court to unravel.
Just because an attorney fails to handle the matter that turns out defective, it does not automatically lead to intentional ineffective assistance. Instead, taken actions can be a result of carelessness or incompetence, both considered as professionally deficient.
On the other side, as various immigration appeals decisions have shown, ineffective assistance claims are sometimes related to carefully weighed tactical calculations, which failed to produce the desired result.
