Title: United States Department of Justice, Office of the Attorney General: Attempt to Reopen Removal Proceedings Based on Lawyer’s Deficient Performa

Link for opinion: http://www.justice.gov/eoir/vll/intdec/nfvol24.htm

Title: United States Department of Justice, Office of the Attorney General: Attempt to Reopen Removal Proceedings Based on Lawyer’s Deficient Performance Without Merit.

In re Compean, 24 I. & N. Dec 710 (B.I.A. 2009) the United States Attorney General examined the motions of three illegal aliens to reopen their past proceedings based on their belief that their lawyer’s all exhibited a deficient performance while carrying out their duty to them. Compean, Bangaly, and J-E-C-et al, all concurred that their attorneys failed to file necessary forms such as Form I-130 Visa petitions and appellate briefs. They also concluded that in failing to do these tasks the lawyers committed egregious and prejudiced acts against them and thus their trials should be reopened based on this deficient performance of their lawyers.

The issue in this case is whether or not the attorney’s actions (the alleged failure to file certain law documents) were prejudiced against their clients. While illegal aliens have few rights in civil proceedings (such as removal proceedings) they do have a statutory privilege to retain private counsel (not-Government-appointed counsel) at their own expense. This being said, the Constitution and the immigration laws do not entitle an illegal alien who is in the process of removal proceedings to relief or compensation for their attorney’s mistakes. However, the Department of Justice may reopen removal proceedings when an illegal alien can prove that they were prejudiced by the actions of their private counsel.

Applicable law here adheres to the issue of whether or not the attorney’s actions prejudiced their clients in some way, caused enough “exceptional and extremely unusual hardship” in order for their removal to be cancelled. Section 240A(b)(1)(D) of the Act, 8 U.S.C. s 1229b (b)(1)(D). Part IV. A of immigration law allows for motions to reopen removal cases based on a lawyer’s deficient performance. However, in the matter of Compean it was determined that Compean’s attorney did in fact file the Form I-130 visa petition that was supposedly missing from the court record. Along with Lozada’s requirement of filing a disciplinary complaint, which Compean failed to do, it was determined Compean could not establish prejudice thus his motion was denied. While Bangaly and J-E-C-et al, followed the necessary Lozada requirements, they also failed to establish prejudice in their case and thus their motions were also denied.

Labels: legal ethics, immigration law, lawyer’s deficient performance, removal proceedings