VIDEO: Immigrants Cannot Be Forced to Proceed with Deportation Hearing When Attorney Running Late

Can an immigration judge order someone deported if they think they’ve hired an attorney and the attorney failed to show up at the deportation hearing? Hi, I’m Jim Hacking, immigration and deportation attorney practicing law here in St. Louis, Missouri. The Board of Immigration Appeals recently handed down a case in which they reversed an immigration judge’s determination that a man should be reported returned back to Mexico. The reason for the reversal was that the man had thought he had hired an attorney and the attorney failed to show up for the deportation proceedings and the judge ordered the man deported.

So here’s what happened. There was a young man in the United States from Mexico. He had snuck into the country. He did not have authorization to be here and he committed a felony while he was in the United States. The man found himself in deportation proceedings and he also found himself detained. In the United States if you have a felony conviction and are in the United States in deportation proceedings you’re going to be subject to what’s called mandatory detention, which means you’re sitting in an immigration jail somewhere dealing with your deportation from there.

Now in this case the man was detained in August and deportation proceedings were initiated against him, that is the case began. And the court gave the man an opportunity to hire an attorney. At the first hearing the man had not hired an attorney. The judge reset the mater for two weeks later. The second time the young man had still not hired an attorney.

He came back two weeks later, so now the deportation proceedings were a month old. The judge said to the young man, “Do you have an attorney?” And this time the young man said, “Yes, I do, I’ve hired an attorney. He’s supposed to be here. I don’t know where he is.” So the judge said to him, “Okay, we’ll put you at the end of the docket.” So the judge went through the other cases on the docket, the attorney still had not appeared, so the judge asked the man, “Well, you don’t have an attorney here. We’re going to go ahead with the deportation proceedings and you’re going to have to go through this without an attorney.”

The judge went through each of the allegations as to why the Department of Homeland Security believed that this young man from Mexico should be deported back to his home country. Typically that’s what happens when the deportation proceedings start. You receive a notice to appear which lists all the factual allegations and the legal basis for your deportation, and so at some point in the proceedings you’re always asked to admit or deny each of the allegations.

In this case the immigration judge went through the charging document and talked to the man from Mexico and asked him to admit or deny each of the allegations. The young man admitted each of the allegations, that he had snuck into the country, that he was working without authorization, that he committed a felony, and admitted that if he were to return back home to Mexico he would not face persecution and admitted that he didn’t have anyone in the United States who might make him eligible for what’s called cancellation of removal.

Having heard all of that the judge went ahead and ordered the man deported. The attorney never showed up. So the man appealed to the Board of Immigration Appeals which is the court above immigration judges, it’s still part of the agency but it’s called the Board of Immigration Appeals and they review cases from immigration judges to make sure that the immigration judge did everything correctly and that the man’s rights were preserved.

On appeal the man argued that he should have been given another continuance so as to allow his new attorney to enter and to represent his interest, and the Board of Immigration Appeals agreed with the man. They ordered that the case should be reversed and they sent it back to the emigration judge. The reason they sent it back to the immigration judge was because they believed that the man’s waiver of his right to counsel was not fair, and was not knowing, and that he did not intend to not go ahead without an attorney. What I mean is the Board of Immigration Appeals concluded that the man did indeed want to have an attorney represent him, that he had not waived that right, and that the immigration judge should have given the young man a continuance so as to allow his new attorney to enter and to file those pleadings.

So it’s an important case. It demonstrates the importance of legal representation in deportation proceedings. It’s not necessarily that the man is not going to be deported ultimately, but his due process right should have been preserved. He should have been given the opportunity to have his attorney represent him. The case had only been pending for about five weeks at the time he was ordered deported. The immigration judge was too impatient and should have allowed the man more time to have his attorney represent him.

If you have any questions about this case or about representation in deportation proceedings we’d be happy to talk to you about it. Gives us a call 314-961-8200 or you can email me jim@hackinglawpractice.com.  Thanks.