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One basis for reopening your case is ineffective assistance of counsel. This claim essentially tells the Immigration Court that they should revisit your case because you had received deficient representation during previous proceedings.


MOTIONS TO REOPEN

So the Immigration Court has issued a decision on your immigration case, and it’s not ideal, but you know there are some facts that the Immigration Court did not consider when making its determination because they did not know about them, or certain circumstances had not yet occurred in your life. For example, since the last time the Court reviewed your case:

  • You have gotten married to your U.S. citizen spouse,
  • You have been the victim of a crime,
  • Or you have realized that your attorney has consistently been making serious and unprofessional mistakes while representing you.

If you have experienced any of these circumstances, or other changes in your personal situation, you may be able to petition the Board of Immigration Appeals (BIA) to reopen your case, or in other words, to take a second look at it. This is done through a Motion to Reopen. A motion to reopen is based on facts, or a change in the applicant’s personal circumstances, meaning the Court’s determination will focus on these newly presented facts which were not available at the previous hearing.


REASONS TO REOPEN AND INEFFECTIVE ASSISTANCE OF COUNSEL

One of the possible reasons, or basis, for reopening your case is ineffective assistance of counsel. This claim essentially tells the Immigration Court that they should revisit your case because you had received deficient representation during previous proceedings. In other words, you suffered significant harm due to your attorney’s errors, and had it not been for their severe mistakes, the outcome of your case would have been different. In order to succeed in a claim for ineffective assistance of counsel, you need to establish a few things. The requirements are set forth in the case Matter of Lozada, and they can be split into two categories: (1) procedural requirements, and (2) proving that you, as the immigrant, were prejudiced by your attorney’s actions. 19 I&N Dec. 637 (BIA 1988). The procedural requirements are similar to a checklist of actions that need to be taken prior to filing the Motion to Reopen, and the prejudice requirement is essentially your responsibility to prove the reasonable probability that, but for your attorney’s mistakes, the result of your case would have been different.

One crucial procedural requirement established in Matter of Lozada is submitting an attorney grievance with the relevant disciplinary organization. Matter of Lozada states that a claim for ineffective assistance of counsel “should reflect whether a complaint has been filed with appropriate disciplinary authorities.” 19 I&N Dec. 637 (BIA 1988). Although Matter of Lozada does not make filing a bar grievance an absolute requirement, since it states that if no bar complaint was filed, the petitioner should alternatively provide an explanation as to why they did not file one, it is important to note that the Board of Immigration Appeals (BIA) very rarely finds that reasons offered are sufficient to justify not submitting a bar complaint. Basically, valid reasons for not submitting a complaint are very specific situations such as the death of that attorney or the attorney’s disbarment.

The BIA has explained that the bar complaint requirement is so strict because it is designed to emphasize the standards which should be expected of attorneys throughout the course of their representation. Additionally, filing a complaint is important because it is the best way to put the relevant disciplinary authority on notice of potential violations of ethical or legal responsibilities. So, it is best to submit an official complaint to your state Bar.

Keep in mind that ineffective assistance of counsel is not only a basis for reopening. It is a grievance that can be filed with your state’s Bar at any time. Each state has an organization, often called the Bar, which is ‘in charge’ of all attorneys who practice law within that state. Since lawyers take an oath vowing to uphold certain professional and ethical standards, one of the Bar organization’s fundamental purposes is to ensure adherence to that vow.


FILING A BAR COMPLAINT

Filing a complaint against an attorney is not to be taken lightly or done without significant consideration in any context. These allegations are taken very seriously and could have permanent and severe repercussions on attorneys and their careers. Of course, this consideration should not outweigh your right to competent legal representation. If you believe that your attorney failed to meet their duties as counsel, then you should file a grievance.

In Florida, the organization that oversees attorneys is called the Florida Board of Bar Examiners (FBBE). The FBBE is responsible for ensuring that attorneys adhere to their legal and ethical responsibilities. This organization is charged with reviewing prospective attorney applications and admitting them into the practice of law, issuing guidance on ethical matters, and investigating all allegations of attorney misconduct. You can file an official attorney grievance by filling out a form on the Florida Bar’s website.

The Florida Bar Website regarding attorney discipline can be found here.

The complaint form itself is linked here. This should be filled out and mailed to the Florida Bar.

It is always recommended that you keep copies of everything for your records whenever you are involved in legal proceedings, in case you need to submit them to the court later.


WHAT IF THE INEFFECTIVE LAWYER IS STILL REPRESENTING ME?

It is still possible to move to Reopen based on Ineffective Assistance of Counsel even if the same attorney still represents you, but this will be challenging. The BIA recently decided a case regarding exactly that situation. Matter of Melgar, 28 I&N Dec. 169 (BIA 2020). The Court pointed out that requiring an attorney to file a Motion to Reopen based on their own ineffective assistance could result in a conflict of interest. A conflict of interest exists if there is a significant risk that a lawyer’s ability to carry out an appropriate course of action for the client – for example, filing a Motion to Reopen or a bar grievance – will be materially limited as a result of the lawyer’s other responsibilities or interests. Asking a lawyer to file a Motion to Reopen alleging their own incompetence will very likely interfere with their independent professional judgment, and their interest in their career will arguably limit their ability to carry out this course of action. If a conflict of interest arises, then an attorney should withdraw representation. So, if you believe that your lawyer is deficient, we recommend that you seek new legal representation.


CONTACT US

If you believe that your attorney provided you with ineffective assistance that resulted in an unfavorable immigration decision, we encourage you to contact our firm to discuss your possibilities regarding reopening your case. You can fill out an inquiry form here. Once you submit this form, somebody at the firm will review your case and contact you as soon as possible. Additional contact information is linked below.

The Linesch Firm Website
The Linesch Firm number: (727) 786-0000


ADDITIONAL RESOURCES

The Attorney Discipline Page of the Florida Bar Website.

The Florida Bar Inquiry/Complaint Form.

Bar Organization and Attorney Directories by State.

Article providing a comprehensive overview about filing a complaint against an attorney.