Strict New Rules for Reopening Cases Based on Deficient Legal Counsel
January 21, 2009
The Attorney General (AG) recently issued a court opinion that vastly changes the requirements for successfully reopening an immigration matter.The new rules stress the importance that individuals are represented by attorneys well-versed in the immigration laws, as well as the significant dangers of hiring paralegals instead of licensed attorneys. In Matter of Compean, 24 I&N Dec. 710 (A.G. 2009), the AG ruled that individuals do not have a constitutional right to legal counsel.Rather, individuals only have a statutory right to counsel at no expense to the government.Furthermore, the AG decision states that individuals do not have any rights under the Constitution or immigration laws for relief due to an attorney’s mistake.Instead, the ability to seek relief due to an attorney’s mistake is an “administrative grace” offered by the government. Under this rationale, the AG clarifies that individuals who are represented by paralegals are ineligible to reopen an immigration matter based on the ineffective assistance of that paralegal.The ability to seek reopening is now limited only if the individual has been harmed due to the deficient performance by an attorney, accredited representative or in the extraordinary case where an individual reasonably but erroneously believed that the person was an attorney.As such, there is now no recourse with the immigration service should a paralegal fail to properly assist an individual with their immigration matter. In addition to limiting the relief for reopening to those represented by attorneys only, the AG decision sets forth the standards that must be proven in order to be successful on a motion to reopen.First, it must be shown that the attorney’s actions were egregious, and not just an ordinary mistake.Second, if the motion to reopen is filed after the applicable deadline, then it must be shown that the individual exercised due diligence in discovering and seeking to cure the attorney’s alleged deficient performance.Third, it must be shown that the individual suffered prejudice as a result of the attorney’s deficient performance.To fulfill this last requirement, the individual must show that it is more likely than not that he would have been successful on the ultimate application for relief sought. In establishing this framework, the AG also detailed the mandatory documentation that must be submitted with a motion to reopen.Effective as the date of the decision on January 7, 2009, all motions to reopen must now include all of the following documents: 1) a copy of the retainer agreement setting forth the services the former attorney was suppose to perform; 2) a copy of a letter to the former attorney detailing the attorney’s deficient performance and the attorney’s reply, if any; 3) a completed and signed complaint addressed, but not necessarily filed, to the appropriate State Bar; 4) a copy of any document or evidence, or affidavit summarizing any testimony, that the individual alleges the former attorney failed to submit; and 5) a statement by the new attorney expressing a belief that the former attorney’s performance fell below minimal standards of professional competence. The AG decision tremendously alters the landscape for motions to reopen when based on inadequate legal representation.The inability to file motions to reopen due to the ineffective representation by a paralegal underscores the peril of hiring a paralegal, who are individuals not authorized to practice law and who do not have the proper legal training to adequately handle the complexities of the immigration laws.The regulatory parameters set forth in the AG decision are now mandatory, so all individuals must ensure that they have a proficient immigration attorney knowledgeable on all of these new provisions.
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