MyLS Analysis On Defending ineffective assistance of Counsel In Immigration Proceedings.

Attorneys practicing immigration law often face significant hurdles when providing effective assistance or counsel to their clients. Potential barriers of language and culture, combined with the intricacies of immigration law, all conspire to make immigration law a uniquely complex arena of professional responsibility. Unfortunately for immigration lawyers, courts and state bar associations have found that those same factors demand that immigration attorneys face higher ethical standards in their practice:

"The importance of quality representation is especially acute to immigrants, a vulnerable population who come to this country searching for a better life, and who often arrive unfamiliar with our language and culture, in economic deprivation and fear." Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008).

Like all attorneys, immigration lawyers have fiduciary responsibilities to their clients, including competence, diligence, communication, and loyalty. Effective counsel, of course, requires compliance with every fiduciary duty an attorney has, in accordance with their duties to the court, their profession, and their duties under the law. Frequently in immigration law, it is at the junction between these multiple duties that claims of ineffective assistance of counsel arise.

Legal Analysis of the Matter of Lozada?

Adjudication of ineffective assistance of counsel claims begins with an inquiry into whether the attorney acted with sufficient competence–or, in other words, whether a competent attorney would have acted differently. Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). However, that inquiry proceeds with the qualification that an immigrant client's subsequent dissatisfaction with their attorney's strategic decisions does not give rise to a claim of ineffective assistance of counsel. See Matter of B-B-, 22 I&N Dec. 309, 310 (BIA 1998).

In immigration proceedings, however, courts are often sensitive to immigrants' unique position in our legal system, finding that one significant reason "an immigrant with limited familiarity with American immigration law [would] retain legal assistance in the first place because they assume that an attorney will know how to comply with the procedural details that make immigration proceedings so complicated." See Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008). The court in Aris echoed a common refrain in immigration law: because immigration attorneys' clients are often unfamiliar with the language and culture of this country, let alone with the intricacies of its immigration law, immigration attorneys are often defacto held to a higher standard of competence and care.

In immigration contexts, claims of ineffective assistance of counsel often give rise to Lozada motions–claims by clients that their removal proceedings should be reopened because ineffective assistance of counsel kept their hearing from being fundamentally fair and violated their due process rights. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

Defending Ineffective Assistance of Counsel Claims

1. Tactics & Strategy:?If a decision not to request or apply for some relief, benefit, or status as an arguable tactical advantage, then a refusal to pursue it does not give rise to ineffective assistance of counsel. See Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir. 1986) (refusing to contest deportability in favor of a generous grant of voluntary departure is a tactical choice); cf. INS v. Doherty, 502 U.S. 314 (1992) (withdrawing an asylum claim to secure a tactical advantage in a master hearing does not give rise to a Lozada claim).
2. Attorney Judgment:?If a request or application for some relief or benefit in the professional judgment of an attorney is not sufficiently supported, they may choose not to. Pursue it until they believe the client can provide prima facie support. Clients are bound by the advice they receive from attorneys unless that advice stems from egregious conduct. See Matter of B-B-, 22 I&N Dec. 309, 311 (BIA 1998) (an attorney's failure to file an asylum application because the client lacked corroborating evidence did not give rise to a Lozada claim because "counsel must balance her clients' desire for relief with her duty to both the court and her clients' interests not to file a frivolous application for relief").
3. Transparency:?Often, the best response to a Lozada claim is preemptive, not reactive. The Second Circuit has said that the difference between acceptable error and culpable malfeasance often turns on nondisclosure. When an attorney discovers an error committed by their office–for example, a failure to appear at a hearing because notice of the hearing was lost–they have a duty to disclose the error to their client and to take all steps necessary to correct it. Neglect concerning the latter two duties turns "a mere error into more serious malpractice." See Aris v. Mukasey, 517 F.3d 595, 601 (2d Cir. 2008).

Conclusion

Despite the apparent diversity of Lozada claims and the variety of courts in which they are raised, a pattern emerges. In each case where an attorney was found not to have effectively assisted their clients, they (1) failed to inform the client of an initial error and its consequences or (2) failed to make every required effort to correct that error. Efforts to hide an error from a client, even if made while attempting to correct that error, may well result in more severe consequences for an attorney than that error itself would have. Transparent communication with clients–especially in an immigration context, where linguistic and cultural barriers loom–is a touchstone of responsible legal practice.

In many ways, MyLS was created to prevent these claims before they arise and to provide attorneys with the resources needed to defend themselves if they ever confront one. At the core of MyLS's ImmigrationSpeed platform are features to facilitate and keep communication records: between you and your client, among your employees and staff, and with courts or government agencies. I encourage anyone interested in avoiding a Lozada claim to see for themselves the many ways in which ImmigrationSpeed and MyLS's other offerings can assist you.?

MyLS is created by lawyers for lawyers with a mission to solve all the tech problems faced by lawyers. The Founder N.M.Gehi, Esq., is an established Immigration lawyer. Under his supervision, a team of talented lawyers, Legal tech, and IT experts have developed tech solutions for lawyers.?