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Motion To Reopen Removal Proceedings Based On Ineffective Assistance Of Counsel

In criminal cases, the accused have a right to be represented by a lawyer. If a person accused of a crime cannot afford a lawyer, the state is required to provide a lawyer at no cost. Immigrants facing deportation may be represented by a lawyer during immigration removal proceedings. However, unlike people accused of a crime, if the immigrant cannot afford a lawyer, one is not provided by the state. This means that in order to have an attorney present at an immigration removal hearing, the immigrant either has to pay for the lawyer or rely on a volunteer lawyer.

Unfortunately, simply having a lawyer during removal proceedings does not guarantee that the lawyer will provide adequate representation. The law recognizes that sometimes lawyers make mistakes that can affect their clients’ rights. Because of this, immigrants are allowed to file a motion to reopen removal proceedings that resulted in a removal order, if the immigrant can show that he or she received the ineffective assistance of counsel in those proceedings. Counsel is another word for lawyer.

The standard for showing ineffective assistance of counsel in immigration proceedings is similar to that required in criminal cases. The affected immigrant has to show there was deficient representation by the lawyer and that the immigrant suffered prejudice. Without a showing of prejudice, the court generally cannot reopen a case even with a finding that a lawyer was ineffective. To show prejudice, the immigrant has to prove that the lawyer’s mistakes materially affected the removal hearing, and if it was not for the lawyer’s actions, the immigrant would not have been deported.

The kind of things that a court may consider ineffective assistance can include:

  • Failing to file required paperwork on behalf of the client;
  • Telling the client he does not need to show up to hearings;
  • Failing to file an appeal on behalf of the client, or
  • Threatening to withdraw from a case two hours before the removal hearing if the client did not agree to voluntary withdrawal.

If an immigrant claims that his or her immigration lawyer was ineffective and that this led to deportation, the person is required to notify the accused lawyer and give him or her a reasonable chance to respond to the accusations. If the lawyer fails to respond, the case can still move forward; the immigrant filing the motion to reopen the case has to inform the court that he or she provided the lawyer with the opportunity to respond.

As can be seen from the discussion above, in order to prove the ineffective assistance of counsel, the immigrant client has to prove that there was an objective failure on the part of the lawyer or someone working for the lawyer, and that failure caused the client harm. Losing the case does not always mean that the lawyer was at fault. In other words, just because a client loses, it does not mean he or she had ineffective counsel.

Let Us Assist You

If you believe your lawyer failed to properly represent you in your case, and it resulted in an order for your removal, contact an experienced immigration lawyer for a consultation. You may have reasonable grounds to have your case reopened. Contact our multi-lingual staff to speak to experienced immigration lawyer, Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.


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