It has been said that immigration laws and regulations are aptly called a labyrinth that only a lawyer could navigate. The courts and the Board of Immigration Appeals have recognized that attorneys are more familiar with the standards and factors an immigration judge examines and can present evidence more effectively. In addition, attorneys have special competence and duties to represent their clients. Attorneys are held to professional standards and obligations. They have a duty to exercise their knowledge and skill in order to present the strongest legally-valid case possible.
Recognizing that aliens have difficulty in presenting their cases forcefully and effectively, the courts have held that aliens have a due process right to competent legal counsel. Competent legal counsel means that aliens have the right to be represented by an attorney who is knowledgeable and experienced in immigration law because the due process right stems from the attorney’s unique role in removal proceedings and other immigration-related transactions.
When the lawyer fails to render competent assistance and the client is prejudiced (harmed) by that failure, the client can file a motion to reopen to seek a new trial. The request is made upon the assertion that the attorney’s representation was outside of the wide range of professionally-competent assistance and was not the result of reasonable professional judgment. It is called ineffective assistance of counsel.
Sometimes, for a variety of reasons, aliens hire a non-lawyer (sometimes known as a legal consultant, an immigration consultant or a notario) to assist them with their immigration problem. In some cases, they believe they are hiring an attorney. In other situations, they know that the person they have hired is not a lawyer. In other cases, the person they are hiring is an attorney but has very little or no prior experience in immigration law. Relying on these people is dangerous. Consultants and notaries do not undergo necessary legal training and are not permitted to appear in court or at Citizenship and Immigration Services offices. Lawyers with no immigration law experience lack familiarity with the complexities of immigration law or procedure.
Many problems arise when the consultant files an application for an alien. If the alien is statutorily ineligible for the relief, he or she may be issued a Notice to Appear in Immigration Court because the government believes they are removable (deportable) from the U.S. If the alien does not go to his hearing, he is ordered deported in absentia (in his absence). It doesn’t matter that the alien didn’t get a notice of the hearing. As long as the notice was sent to the alien’s representative or to the address given by the alien, the alien is considered to have received notice.
Even if the alien does go to his hearing, consultants are not permitted to represent him in the courtroom. He will be on his own. That is what happened in a 9th Circuit case. Their notario told them that they did not need to call witnesses, provide expert testimony or submit documents in support of their application for relief. Not surprisingly, the immigration judge denied their applications. When they obtained competent counsel and filed a motion to reopen based on ineffective assistance of counsel, the motion was denied. On appeal, the Ninth Circuit said that non-attorney immigration consultants simply lack the expertise and legal and professional duties to their clients that are necessary preconditions for ineffective assistance of counsel claims. The court went on to say that if an alien chooses not to retain an attorney and knowingly relies on assistance from individuals not authorized to practice law, such a voluntary choice will not support a due process claim of ineffective assistance of counsel.
The result of that decision is that, if an alien knows the person he is hiring is not a lawyer and relies on that person anyway, no matter how bad the representation is, the alien will not be able to claim ineffective assistance of counsel. (That is also true if the alien decides to represent himself. He cannot do so and then claim that his representation is inadequate because he did not know what he was doing). If the consultant pretended to be an attorney, ineffective assistance may still be an option. Even if the alien was aware that the representative was not a lawyer, the alien may be able to raise other due process claims. Those assessments must be made by a competent attorney. If you have an immigration problem, make sure that you place your life into the hands of someone competent. Seek the assistance of a skilled, experienced immigration lawyer.
