Ineffective Assistance of Counsel in Immigration Proceedings
Author: New York Immigration Lawyer Alena Shautsova
A person who is hiring an attorney for representation should be able to rely on that attorney’s advice, skills and knowledge. Unfortunately, sometimes lawyers make mistakes. They might undertake a case they lack necessary skills or knowledge to handle, they might give a wrong advice or they might misinform the client or fail to file an important document or check an important information. For example, due to an attorney’s failure to check client’s previous Immigration history might cause removal proceedings to be initiated against the client; failure to submit all necessary documents with a motion may cause a denial…
Such failures hurt clients and hurt justice. The law recognizes this and sometimes, a clients is given a second chance when he/she is using “ineffective assistance of counsel” to reverse a negative decision, be it a removal, denial of motion to removal, or a removal order issued in absentia.
In Immigration proceedings, to prior to using “ineffective assistance of counsel” defense or cause, a person has to comply (or substantially comply) with the requirements specified in a case called Matter of Lozada, BIA 3059 (1988). Substantially, a person seeking to reverse a negative decision, has to file a grievance complaint against his/her previous lawyer, and present its copy before the Board of Immigration Appeals or Immigration court. As everything and anything in law is subject of a dispute, so is the “compliance” with the requirements. That is why a lawyer’s assistance is needed even if one would like to complain about a previous lawyer, because if the “complaint” is done incorrectly, it will not have the necessary legal effect.