Recognition and accreditation and ineffective assistance decisions as of july 27 2011
RECOGNITION AND ACCREDITATION: see also Attorneys and representatives accreditation of alien refugee law graduate; #2743 application, proper filing of; #3132, 3196, 3614, 3615 nominal charges; #3012, 3132, 3196, 3210, 3292, 3614 nonprofit status; #3210 requirements for; #3132, 3196, 3210, 3292, 3614, 3615 withdrawal of recognition; #3210ATTORNEYS AND REPRESENTATIVES: see also Recognition and accreditation actions binding on client; #3011, 3059, 3367 attorney fees (EAJA); #3105, 3106 counsel, right to: see Due process: counsel deficient performance of; #3632 definition of attorney; #3237 disciplinary proceedings: o burden of proof: see Burden of proof o grounds for; #2624, 2722, 3237, 3496, 3521, 3547, 3580, 3583, 3633 o reinstatement after discipline; #3582, 3583 frivolous applications, duty not to file; #3367 ineffective assistance of counsel: see Due process: counsel “limited” appearance of counsel; #3011, 3312 notice of entry of appearance; #3237 notice to serves as notice to client; #2992, 3142, 3296, 3312, 3628 right to counsel: see Due process: counsel statements by counsel not evidence; #2820, 2951, 3042 withdrawal from representation; #3064, 3135, 3162, 3199The next pages list the BIA Precedents indexed above along with links to them and most of theholdings. There are also various lists and facts sheets updated regularly and continually, asneeded found on the EOIR website. There are resources to help one find competent andreputable legal help in addition to names to steer clear of.See the following:http://www.justice.gov/eoir/discipline.htmhttp://www.justice.gov/eoir/statspub/raroster.htmhttp://www.justice.gov/eoir/formslist.htm (Find forms: EOIR-27, 28, 31, 44, and more.)USCIS Forms Page (Find forms: G-28, G-28I, G-639 (FOIA), and more.)
ID# Matter of Cite as: Link and/or Holding:2624 Solomon 16 I&N Dec. 388 http://www.justice.gov/eoir/vll/intdec/vol16/2624.pdf (BIA 1977)2722 De Anda 17 I&N Dec. 54 http://www.justice.gov/eoir/vll/intdec/vol17/2722.pdf (BIA/AG 1979)2743 Pamatong 17 I&N Dec. 175 http://www.justice.gov/eoir/vll/intdec/vol17/2743.pdf (BIA 1979)2820 Ramirez- 17 I&N Dec. 503 http://www.justice.gov/eoir/vll/intdec/vol17/2820.pdf Sanchez (BIA 1980) (4) Counsels comments in support of a motion to suppress are not evidence. (8) The facts that the respondent twice requested and accepted voluntary departure and that, even with the assistance of counsel, he has not alleged any right to remain in the United States constitute persuasive evidence of alienage.2951 Laureano 19 I&N Dec. 1 http://www.justice.gov/eoir/vll/intdec/vol19/2951.pdf (BIA 1983) Cites favorably Ramirez-Sanchez, id.2992 Barocio 19 I&N Dec. 255 http://www.justice.gov/eoir/vll/intdec/vol19/2992.pdf (Comm. 1985) (1) An alien who has violated a lawful order of deportation by failing to report to the Immigration and Naturalization Service following notification that his deportation has been scheduled does not merit the favorable exercise of discretion required for reopening of deportation proceedings. (2) Notice of a decision of the Board of Immigration Appeals sent to an aliens attorney of record constitutes notice to the alien. (3) The unsupported claim that the respondents failure to depart voluntarily was due to their unawareness of the Boards decision does not demonstrate a compelling reason to warrant reinstatement of voluntary departure where the record reflects that notice of the decision was sent to counsel.
ID# Matter of Cite as: Link and/or Holding:3011 Velasquez 19 I&N Dec. 377 http://www.justice.gov/eoir/vll/intdec/vol19/3011.pdf (BIA 1986) (1) There is a strong presumption that an attorneys decision to concede an aliens deportability in a motion for change of venue was a reasonable tactical decision, and, absent a showing of egregious circumstances, such a concession is binding upon the alien as an admission. (2) It is immaterial whether an alien actually authorized his attorney to concede deportability in a motion for change of venue, for so long as the motion was prepared and filed by an attorney of record on behalf of his alien client, it is prima facie regarded as authorized by the alien and is admissible as evidence. (3) An allegation that an attorney was authorized to represent an alien only to the extent necessary to secure a reduction in the amount of bond does not render inadmissible the attorneys concession of deportability in a pleading filed in regard to another matter, for there is no "limited" appearance of counsel in immigration proceedings.3012 American 19 I&N Dec. 386 http://www.justice.gov/eoir/vll/intdec/vol19/3012.pdf Paralegal (BIA 1986) Academy, (1) "Nominal charges," as set forth in 8 C.F.R. § Inc. 292.2(a) (1986), are not defined in terms of specific dollar amounts but have been interpreted to mean a very small quantity or something existing in name only as distinguished from something real or actual. (2) The applicant, whose charges for services exceed amounts which can be construed as "nominal," may not rely upon the notion that its fees are substantially less than those charged by law firms or that its fees are one of the means by which it is able to fund itself. (3) The applicants detailed fee schedule and its statement that it will provide free services as funds become available from contributions suggest that payment is in fact a prerequisite to service; therefore, the applicants characterization of the amounts it requests in payment for services as "donations" is not
ID# Matter of Cite as: Link and/or Holding: persuasive in a determination of "nominal charges." (4) "Nominal charges," as contemplated by 8 C.F.R. § 292.2(a) (1986), were not intended as a means by which those who are able to pay for assistance help offset the expenses of those who cannot.3042 Obaigbena 19 I&N Dec. 533 http://www.justice.gov/eoir/vll/intdec/vol19/3042.pdf (BIA 1988) Cites favorably Ramirez-Sanchez, supra.3059 Lozada 19 I&N Dec. 637 http://www.justice.gov/eoir/vll/intdec/vol19/3059.pdf (BIA 1988) (1) A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel requires (1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsels ethical or legal responsibilities, and if not, why not. (2) ........3064 Rosales 19 I&N Dec. 655 http://www.justice.gov/eoir/vll/intdec/vol19/3064.pdf (BIA 1988) (1) Where an attorney asks to withdraw from representation of an alien, his request for withdrawal should include evidence that he attempted to advise his client, at his last known address, of the date, time, and place of the scheduled hearing, and he should also provide the immigration judge with the aliens
ID# Matter of Cite as: Link and/or Holding: last known address, assuming it is more current than any address previously provided to the immigration judge. (2) Unless these requirements are met, counsels withdrawal should be only conditionally granted, that is, granted for all purposes except receipt of service of documents.3105 Anselmo 20 I&N Dec. 25 http://www.justice.gov/eoir/vll/intdec/vol20/3105.pdf (BIA 1989) (1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions." Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc). (2) Although the Board of Immigration Appeals disagrees with the courts holding, the decision of the Ninth Circuit that the EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the Ninth Circuit. (3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit.3106 Fede 20 I&N Dec. 35 http://www.justice.gov/eoir/vll/intdec/vol20/3106.pdf (BIA 1989) (1) A regulation promulgated by the Attorney General has the force and effect of law as to immigration judges and the Board of Immigration Appeals. (2) As the Attorney General has determined by regulation that immigration proceedings do not come within the scope of the Equal Access to Justice Act, absent a regulatory change or controlling court order, neither an immigration judge nor the Board has authority to consider an application for attorney fees and costs under that Act.
ID# Matter of Cite as: Link and/or Holding:3132 Lutheran 20 I&N Dec. 185 http://www.justice.gov/eoir/vll/intdec/vol20/3132.pdf Ministries (BIA 1990) of Florida The application of a nonprofit organization seeking recognition under 8 C.F.R. § 292.2(a) (1989) should include detailed information as to how the organization will operate and by whom it will be staffed, as well as other evidence regarding the organizations qualifications such as resumes for the staff members and information as to the availability of legal resource materials, training programs in immigration law and procedure, and supervised employment for the staff.3135 Lopez- 20 I&N Dec. 203 http://www.justice.gov/eoir/vll/intdec/vol20/3135.pdf Barrios (BIA 1990) (1) The administrative closing procedure may not be used if it is opposed by either party to the proceedings. (2) If an immigration judge is satisfied that the notice provided to a respondent who failed to appear for a scheduled hearing was sufficient, then a hearing in absentia may be held, but if the notice was not sufficient, then termination of proceedings, not administrative closing, is appropriate.3142 Peugnet 20 I&N Dec. 233 http://www.justice.gov/eoir/vll/intdec/vol20/3142.pdf (BIA 1991) (1) The definition of the terms "routine service" and "personal service" provided by 8 C.F.R. §103.5a(a) (1990) only applies to administrative proceedings before Immigration and Naturalization Service officers and consequently is not directly or formally applicable to defining the terms "routine" and "personal" service as used in 8 C.F.R. § 242.1(c) (1990) regarding the proper service on an alien of an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) as a means of instituting deportation proceedings. (2) In interpreting the terms "routine" and "personal" service as used in 8 C.F.R. § 242.1(c) (1990), the Board of Immigration Appeals will use the definition
ID# Matter of Cite as: Link and/or Holding: provided in 8 C.F.R. § 103.5a(a) (1990) as guidance and adopt that definition in total, given that 8 C.F.R. § 103.5a(a) (1990) previously applied in defining "routine" versus "personal" service of an Order to Show Cause and there exists no currently applicable regulation defining these terms for purposes of 8 C.F.R. §242.1(c) (1990). (3) For purposes of defining "routine" and "personal" service within the meaning of 8 C.F.R. §242.1(c) (1990), routine service consists of mailing a copy of a document by ordinary mail addressed to a person at his last known address, while personal service, which shall be performed by a government employee, consists of any of the following, without priority or preference: delivery of a copy personally; delivery of a copy at a persons dwelling house or usual place of abode by leaving it with some person of suitable age and discretion; delivery of a copy at the office of an attorney or other person, including a corporation, by leaving it with a person in charge; mailing a copy by certified or registered mail, return receipt requested, addressed to a person at his last known address. (4) An aliens deportation hearing may not proceed in absentia where the Order to Show Cause is sent to the aliens address by regular mail and is not reserved by personal service as required by 8 C.F.R. § 242.1(c) (1990) after the alien fails to appear for the hearing or acknowledge that he has received the Order to Show Cause.3162 D-L & A- 20 I&N Dec. 409 http://www.justice.gov/eoir/vll/intdec/vol20/3162.pdf M- (BIA 1991) Applicants for admission to the United States, who were not traveling in transit without visa status, are not excludable under section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1988), where the applicants did not present or intend to present fraudulent visas or travel documents or documents containing willful misrepresentations to an authorized official of the United States Government at the time of their attempted entry. Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984), distinguished. [Only transit-without-visa
ID# Matter of Cite as: Link and/or Holding: (TWOV) is subject to exclusion/inadmissibility for fraud/misrepresentation charge even when applying for asylum.] In footnote #1: Cf. Rosales on “withdrawal procedures”.3196 Florida 20 I&N Dec. 639 http://www.justice.gov/eoir/vll/intdec/vol20/3196.pdf Rural (BIA 1993) Legal An organization requesting recognition or Services, accreditation of its representatives, which has Inc. physically separate offices, must demonstrate by individual application that each office independently has at its disposal adequate knowledge, information, and experience in immigration law and procedure and that it makes only nominal charges and assesses no excessive membership dues for persons given assistance.3199 Chow 20 I&N Dec. 647 http://www.justice.gov/eoir/vll/intdec/vol20/3199.pdf (BIA 1993) Denied motions to withdraw as attorneys of record.3210 Baptist 20 I&N Dec. 723 http://www.justice.gov/eoir/vll/intdec/vol20/3210.pdf Education (BIA 1993) Center (1) In a proceeding under 8 C.F.R. § 292.2(c) (1993) to withdraw recognition of an organization authorized to practice before the Immigration and Naturalization Service and the Board of Immigration Appeals, an organization seeking to retain its status as a recognized organization must demonstrate by clear, unequivocal, and convincing evidence that it continues to satisfy the requirements for recognition under 8 C.F.R. § 292.2(a) (1993). (2) The Board terminated the respondents status as a recognized organization under 8 C.F.R. § 292.2(c) (1993), having found that the respondent had not established by clear, unequivocal, and convincing evidence that it was a non-profit organization, independent of and separate and apart from its founder and representative, Reverend Marc Azard, a non-lawyer who used the respondents recognition as a means of continuing his immigration counseling practice to receive income for himself.
ID# Matter of Cite as: Link and/or Holding:3237 Sparrow 20 I&N Dec. 920 http://www.justice.gov/eoir/vll/intdec/vol20/3237.pdf (BIA 1994) (1) Because the Notice of Entry of Appearance as Attorney or Representative (Form G-28) is designed to determine whether an individual is an attorney within the meaning of 8 C.F.R. § 1.1(f) (1994), an attorney filing this form has a duty to disclose disciplinary actions or other restrictions on his practice of law in the bars of courts in jurisdictions other than those in which he claims to be in good standing. (2) Where an attorney in disciplinary proceedings under 8 C.F.R. § 292.3(a)(10) (1994) is charged with willfully making false and material statements or representations with respect to his qualifications or authority to represent others in any case, his false statement or representation is deemed material if it has a tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed. (3) A 10-year suspension from the practice of law before the Immigration and Naturalization Service and the Executive Office for Immigration Review is appropriate where the respondent has a conviction which involved a conspiracy to violate immigration laws through a sham marriage scheme, making false statements to the Service, suborning perjury, and stealing government property; the respondent is under suspension from the practice of law in three states; the respondent misrepresented his qualifications or authority to represent others in immigration proceedings on Notices of Entry of Appearance; and the respondent did not report his conviction to the Executive Office for Immigration Review or state bar authorities.3292 Chaplain 21 I&N Dec. 578 http://www.justice.gov/eoir/vll/intdec/vol21/3292.pdf Services, (BIA 1996) Inc. (1) In an application for recognition, an applicant must respond to and successfully rebut an adverse recommendation made by the district director, even when such recommendation has been made in a prior recognition proceeding involving the applicant.
ID# Matter of Cite as: Link and/or Holding: (2) Denial of the applicant’s recognition request is justified by unrebutted allegations in the district director’s recommendation made in prior recognition proceedings that the applicant’s personnel supplied clients with misinformation; that the applicant improperly submitted Notices of Entry of Appearance as Attorney or Representative (Forms G- 28) on behalf of a purportedly associated attorney who never performed services; that the applicant’s clients had been charged excessive amounts for services in spite of the applicant’s fee list which reflects nominal charges; and that the member of the applicant’s staff upon whose expertise the applicant relies has been the subject of complaints for the unauthorized practice of law.3312 N-K- & V- 21 I&N Dec. 879 http://www.justice.gov/eoir/vll/intdec/vol21/3312.pdf S- (BIA 1997) A claim of ineffective assistance of counsel can, if the applicant meets the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), form the basis of a successful motion to reopen exclusion proceedings where the applicant was ordered excluded in an in absentia hearing.3367 B-B- 22 I&N Dec. 309 http://www.justice.gov/eoir/vll/intdec/vol22/3367.pdf (BIA 1998) Where counsel’s insistence on corroborating evidence discouraged the respondents from seeking asylum, but was reasonable in light of case precedent, there is no showing of ineffective assistance of counsel.3487 Asad 23 I&N Dec. 553 Link (BIA 2003) (1) Case law of the United States Supreme Court holding, in the context of criminal proceedings, that there can be no deprivation of effective assistance of counsel where there is no constitutional right to counsel does not require withdrawal from Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), finding a right to assert a claim of ineffective assistance of counsel in immigration proceedings, where the United
ID# Matter of Cite as: Link and/or Holding: States Courts of Appeals have recognized that a respondent has a Fifth Amendment due process right to a fair immigration hearing, which may be denied if counsel prevents the respondent from meaningfully presenting his or her case. (2) The respondent did not establish that his former counsel’s failure to file a timely appeal constituted sufficient prejudice to warrant consideration of his late appeal on the basis of ineffective assistance of counsel.3496 Gadda 23 I&N Dec. 645 http://www.justice.gov/eoir/vll/intdec/vol23/3496.pdf (BIA 2003); aff’d, Gadda v. Ashcroft, (1) An attorney who practices immigration law in 377 F.3d 934 (9th proceedings before the Board of Immigration Cir. 2004) Appeals, the Immigration Courts, and the Department of Homeland Security must be a member in good standing of a State bar and is therefore subject to discipline by State bar authorities. (2) The Board of Immigration Appeals has authority to increase the level of disciplinary sanction initially imposed by an adjudicating official against an attorney. (3) Where the respondent was disbarred by the Supreme Court of California based on his egregious and repeated acts of professional misconduct over a number of years, expulsion from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security is an appropriate sanction.3521 Ramos 23 I&N Dec. 843 http://www.justice.gov/eoir/vll/intdec/vol23/3521.pdf (BIA 2005) (1) Under the attorney discipline regulations, a disbarment order issued against a practitioner by the highest court of a State creates a rebuttable presumption that disciplinary sanctions should follow, which can only be rebutted upon a showing that the underlying disciplinary proceeding resulted in a deprivation of due process, that there was an infirmity of proof establishing the misconduct, or that discipline would result in injustice.
ID# Matter of Cite as: Link and/or Holding: (2) A practitioner who has been expelled may petition the Board of Immigration Appeals for reinstatement after 1 year, but such reinstatement is not automatic and the practitioner must qualify as an attorney or representative under the regulations. (3) The Government is not required to show that an attorney has “appeared” before it, because any attorney is a “practitioner” and is therefore subject to sanctions under the attorney discipline regulations following disbarment. (4) Where the respondent was disbarred by the Supreme Court of Florida as a result of his extensive unethical conduct, expulsion from practice before the Board, the Immigration Courts, and the Department of Homeland Security is an appropriate sanction.3547 Truong 24 I&N Dec. 52 http://www.justice.gov/eoir/vll/intdec/vol24/3547.pdf (BIA 2006) (1) Under the attorney discipline regulations, a disbarment order issued against a practitioner creates a rebuttable presumption of professional misconduct, which can only be rebutted by a showing that the underlying disciplinary proceeding resulted in a deprivation of due process, that there was an infirmity of proof establishing the misconduct, or that discipline would result in grave injustice. (2) Where the respondent was disbarred by the highest court of the State of New York, based in large part on his misconduct in a State court action, and where none of the exceptions to discipline are applicable, suspension from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security for 7 years is an appropriate sanction.3580 Shah 24 I&N Dec. 282 http://www.justice.gov/eoir/vll/intdec/vol24/3580.pdf (BIA 2007) (1) An attorney who knowingly makes a false statement of material fact or law or willfully misleads any person concerning a material and relevant matter relating to a case is subject to discipline.
ID# Matter of Cite as: Link and/or Holding: (2) It is in the public interest to discipline an attorney who knowingly and willfully misled the United States Citizenship and Immigration Services by presenting an improperly obtained certified Labor Condition Application under his signature in support of a nonimmigrant worker petition.3582 Krovonos 24 I&N Dec. 292 http://www.justice.gov/eoir/vll/intdec/vol24/3582.pdf (BIA 2007) A motion for reinstatement to practice filed by an attorney who was expelled from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security as a result of his conviction for immigration-related fraud, but who was reinstated to practice law in New York, was denied because he failed to show that he possessed the moral and professional qualifications to be reinstated to practice and that his reinstatement would not be detrimental to the administration of justice.3583 Jean- 24 I&N Dec. 294 http://www.justice.gov/eoir/vll/intdec/vol24/3583.pdf Joseph (BIA 2007) Where an attorney who was suspended from practice before the Board of Immigration Appeals, the Immigration Courts, and the Department of Homeland Security pending the final disposition of his attorney discipline proceeding sought reinstatement because he had been reinstated to the Florida Bar, but he had practiced before the Miami Immigration Court while under the Board’s immediate suspension order, his motion was denied, and he was instead suspended for 120 days, twice the recommended discipline in the Notice of Intent To Discipline.3614 EAC, Inc. 24 I&N Dec. 556 Link (BIA 2008) (Recognition) (1) The process of recognition is designed to evaluate the qualifications of only those nonprofit organizations that provide knowledgeable legal assistance to low-income aliens in matters involving immigration law and procedure.
ID# Matter of Cite as: Link and/or Holding: (2) In order to establish that it has adequate knowledge of immigration law and procedure, an organization seeking recognition must have sufficient access to legal resources, which may include electronic or internet access, as well as resources provided by a law library. (3) An organization seeking recognition must show that it has either a local attorney who is on the staff, offering pro bono services, or providing consultation under a formal arrangement; a fully accredited representative; or a partially accredited representative with access to additional expertise. (4) A recognized organization that does not offer a full range of immigration legal services or whose staff is not sufficiently experienced to handle more complex immigration issues must have the ability to discern when it should direct aliens to seek other legal assistance.3615 EAC, Inc. 24 I&N Dec. 563 Link (BIA 2008) (Accreditation) (1) All accredited representatives on the staff of a recognized organization must have a broad knowledge of immigration law and procedure, even if the organization only intends to provide limited services through one or more partially accredited representatives. (2) In order to show that a proposed accredited representative has the broad knowledge and experience in immigration law and procedure required by 8 C.F.R. § 1292.2(d) (2008), a recognized organization should submit the individual’s resume, letters of recommendation, and evidence of immigration training completed, including detailed descriptions of the topics addressed.3628 M-R-A- 24 I&N Dec. 665 http://www.justice.gov/eoir/vll/intdec/vol24/3628.pdf (BIA 2008) (1) Where a Notice to Appear or Notice of Hearing is properly addressed and sent by regular mail according to normal office procedures, there is a presumption of delivery, but it is weaker than the
ID# Matter of Cite as: Link and/or Holding: presumption that applies to documents sent by certified mail. Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995), distinguished. (2) When an Immigration Judge adjudicates a respondent’s motion to reopen to rescind an in absentia order of removal based on a claim that a notice sent by regular mail to the most recent address provided was not received, all relevant evidence submitted to overcome the weaker presumption of delivery must be considered, including but not limited to factors such as affidavits from the respondent and others who are knowledgeable about whether notice was received, whether due diligence was exercised in seeking to redress the situation, any prior applications for relief that would indicate an incentive to appear, and the respondent’s prior appearance at immigration proceedings, if applicable. (3) The respondent overcame the presumption of delivery of a Notice of Hearing that was sent by regular mail where he submitted affidavits indicating that he did not receive the notice, had previously filed an asylum application and appeared for his first removal hearing, and exercised due diligence in promptly obtaining counsel and requesting reopening of the proceedings.3632 Compean, 24 I&N Dec. 710 http://www.justice.gov/eoir/vll/intdec/vol24/3632.pdf Bangaly & (A.G. 2009) J-E-C- (1) Aliens in removal proceedings have a statutory (Compean I) VACATED privilege to retain private counsel at no expense to the Government. (2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature. (3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its
ID# Matter of Cite as: Link and/or Holding: guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled. (4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel. (5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an alien’s motion to reopen and accompanying on counsel’s allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge. (6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings.
ID# Matter of Cite as: Link and/or Holding: (7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking. (8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying the lawyer’s deficient performance and a copy of the lawyer’s response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the document’s contents in his affidavit. Matter of Lozada, superseded. (LOZADA HAS BEEN REINSTATED AND IS DUE TO BE CODIFIED) (9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may
ID# Matter of Cite as: Link and/or Holding: reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied.3633 Rosenberg 24 I&N Dec. 744 http://www.justice.gov/eoir/vll/intdec/vol24/3633.pdf (BIA 2009) (1) A claim by an attorney who is currently suspended from practice before the United States Court of Appeals for the Ninth Circuit that he is in good standing before the California State Bar is not a basis to set aside an order of the Board of Immigration Appeals suspending him from practice before the Board, the Immigration Courts, and the Department of Homeland Security. (2) It is not in the interest of justice to set aside the Board’s immediate suspension order where the attorney failed to object to the Ninth Circuit Appellate Commissioner’s Report and Recommendation and is therefore not likely to prevail on the merits of the attorney discipline case, given the heavy burden of proof under 8 C.F.R. § 1003.103(b)(2) (2008).3643 Compean, 25 I&N Dec. 1 http://www.justice.gov/eoir/vll/intdec/vol25/3643.pdf Bangaly & (A.G. 2009) J-E-C- The Attorney General vacated the decision in Matter (Compean II) of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judges to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.3667 Kronegold 25 I&N Dec. 157 http://www.justice.gov/eoir/vll/intdec/vol25/3667.pdf (BIA 2009) (1) Where disciplinary proceedings are based on a final order of suspension or disbarment, the order creates a rebuttable presumption that reciprocal disciplinary sanctions should follow, which can be rebutted only if the attorney demonstrates by clear and convincing evidence that the underlying disciplinary proceeding resulted in a deprivation of
ID# Matter of Cite as: Link and/or Holding: due process, that there was an infirmity of proof establishing the misconduct, or that discipline would result in a grave injustice. (2) In determining whether to impose reciprocal discipline on an attorney who has been suspended or disbarred by a State court, the Board of Immigration Appeals conducts a deferential review of the proceedings that resulted in the initial discipline. (3) Where the respondent was disbarred in New York, which precludes an attorney from seeking reinstatement for 7 years, and he failed to rebut the presumption that reciprocal discipline should be imposed, his suspension from practice before the Board, the Immigration Courts, and the Department of Homeland Security for 7 years was an appropriate sanction.3721 Salomom 25 I&N Dec. 559 http://www.justice.gov/eoir/vll/intdec/vol25/3721.pdf (BIA 2011) Nonidentical reciprocal discipline of an attorney does not amount to a “grave injustice” under 8 C.F.R. § 1003.103(b)(2)(iii) (2011) where the attorney has engaged in wide-ranging misconduct and was disciplined in multiple jurisdictions.