Top St. Louis Immigration & Deportation Attorney Jim Hacking Discusses Negligent Attorney & “Extreme Hardship” Waiver

As some firm clients can attest, the Department of Homeland Security (“DHS”) can be very aggressive in seeking to deny or revoke lawful permanent resident status for a non-citizen.  As some other clients can attest, hiring the wrong immigration attorney can seriously jeopardize an alien’s ability to stay in the US.  A recent appellate case from the Seventh Circuit in Chicago, Lam v. Holder, illustrates these points quite well.

In that case, Mr. Cheikh Lam, a native of Senegal, came to the US as a visitor in 1994.  A year later, he became a full student under an F visa.  In 2000, Mr. Lam adjusted status to lawful permanent resident based on his marriage to a US citizen.  The couple had two US citizen children.  In January of 2002, Mr. Lam pled guilty to knowingly using the name and social security of another so as to commit forgery.  He was sentenced to three years probation and given a fine.

In December of 2004, Mr. Lam took a trip abroad.  When he returned to O’Hare International Airport, customs officials became aware of his conviction and gave him deferred inspection.  In March of 2005, he was paroled into the US and given a Notice to Appear, which is the document that DHS uses to commence deportation proceedings.  DHS charged Lam with being inadmissible for commission of a crime involving moral turpitude.

Lam hired an immigration attorney named Guy Croteau.  The immigration judge gave a deadline to file a pre-hearing statement with evidence of Mr. Lam’s eligibility for relief from removal.  The immigration attorney did not file anything by the deadline.  Later, the attorney orally advised the Court that his client would seek relief under Section 212(h) due to the extreme hardship that would befall his US citizen spouse and children if he were deported.  He also argued that the crime to which he pled guilty was not a crime involving moral turpitude.  After a series of continuances, the case was set for hearing.  Attorney Croteau showed up, Mr. Lam did not.  The attorney explained to the immigration judge that he had neglected to tell his client the new court date.  The judge criticized the attorney for “a serious dereliction of duty,” but waived the non-appearance by Mr. Lam.  The court also noted that Mr. Lam appeared eligible for the 212(h) waiver.

At a subsequent hearing, Mr. Lam appeared but his attorney did not.  The case was reset.  Mr. Lam and his wife testified regarding her depression, the hardship the deportation was having on the family and related issues.  Due to some government records, the immigration judge concluded that Mr. Lam had not demonstrated rehabilitation for his crime and that his wife had not shown that her depression was extreme.  The court denied the 212(h) waiver.  Lam’s attorney filed a Notice of Appeal.  However, he never filed a brief and his client’s case was summarily dismissed.

Lam filed a bar complaint (the opinion indicates that the attorney had five others pending against him).  He also hired a new attorney who filed a Motion to Reopen and Remand, alleging ineffective assistance of counsel.  The BIA granted the motion and reinstituted the appeal.  The new attorney filed briefs along with additional evidence of both rehabilitation and hardship.  The BIA dismissed the appeal, finding that the immigration judge had not clearly erred and that the failure to demonstrate rehabilitation was not due to mistakes by prior counsel.  Lam appealed to the Seventh Circuit in Chicago.

On appeal, the Court concluded that the immigration judge and the BIA had overlooked key evidence on the hardship issue.  The Court also held that the immigration judge had considered improper evidence related to Lam’s conviction, namely hearsay evidence of alleged other bad acts.  The Court sent the case back down for actual consideration of hardship.

This case illustrates many of the themes we discuss on this website frequently.  First, you have to hire a competent, experienced immigration attorney.  Trying to stop a deporation with no attorney or with an attorney who does not know what he is doing is a sure way to get deported.  Second, DHS works very hard to deport people that they don’t want in the country.  Gathering competent and compelling evidence in support of allowing the alien to stay in the US is crucial.  Finally, the Seventh Circuit has really become much more receptive to the appeals of aliens and is holding the Board of Immigration Appeals and DHS to a seemingly much more rigorous standard.  That is a good thing.

If you think that the immigration attorney that you hired is not handling your case properly, or if you have yet to decide on whether or not you need a deportation attorney, contact us here or call us at 314-961-8200 so that you can learn more about how having an effective immigration attorney can help you stay in the U.S.