Wednesday, February 27, 2008

2d Circuit: Ineffective Assistance Can Constitute "Exceptional Circumstances"

The Second Circuit Court of Appeals has blasted the immigration bar in Garfield Aris v. Michael Mukasey, a recent case alleging ineffective assistance of counsel, decided Feb. 20.

With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country. We have previously indicated that ineffective assistance of counsel can constitute an “exceptional circumstance” warranting the reopening of a deportation order entered in absentia. See Twum v. INS, 411 F.3d 54, 59 n.4 (2d Cir. 2005).

We write today to establish what we would have thought self-evident: A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia (or the ramifications thereof) has provided ineffective assistance. We further clarify that such misadvice may constitute ineffective assistance of counsel even where it is supplied by a paralegal providing scheduling information on behalf of a lawyer.

Under the (Immigration & Naturalization Act), an alien ordered deported in absentia may reopen the case by filing a motion within 180 days after the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances.

(The Act) defines exceptional circumstances as “circumstances such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.”

We now join our sister circuits in concluding that, under BIA precedent applicable to the pre-1996 version of the INA as well as its current iteration, a lawyer’s inaccurate advice to his client concerning an immigration hearing date can constitute “exceptional circumstances” excusing the alien’s failure to appear at a deportation hearing...and meriting the reopening of an in absentia deportation order.

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 in fear. In immigration matters, so much is at stake -- the right to remain in this country, to reunite a family, or to work. While binding Second Circuit precedent holds that aliens in deportation proceedings have “no specific right to counsel,” the Fifth Amendment does require that such proceedings comport with due process of the law.

...given the disturbing pattern of ineffectiveness evidenced in the record in this case(and, with alarming frequency, in other immigration cases before us), we reiterate that due process concerns may arise when retained counsel provides representation in an immigration proceeding that falls so far short of professional duties as to “impinge upon the fundamental fairness of the hearing.”

The Court goes on to lecture immigration attorneys on the fundamentals of their obligation to provide competent services, and to make prompt disclosure of lapses.

Members of the bar enjoy a monopoly on legal practice, a professionalized system designed in large part around [their] needs. And for that reason, among others, lawyers have a duty to render competent services to their clients.

When lawyers representing immigrants fail to live up to their professional obligations, it is all too often the immigrants they represent who suffer the consequences.

We appreciate that, unfortunately, calendar mishaps will from time to time occur. But the failure to communicate such mistakes, once discovered, to the client, and to take all necessary steps to correct them is more than regrettable -- it is unacceptable. It is nondisclosure that turns the ineffective assistance of a mere scheduling error into more serious malpractice.

(This deportee's) prior attorneys failed spectacularly to honor their professional obligation to him and to the legal system they were duty-bound to serve. Governmental authorities, whatever their roles, must be attentive to such lapses that so grievously undermine the administration of justice.

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