VIDEO: St. Louis Deportation Attorney Jim Hacking Explains How To Raise an Ineffective Assistance of Counsel Claim

What options do I have if I’ve been ordered deported because my immigration attorney made a mistake on my case. I am Jim Hacking, immigration attorney practicing law here in St. Louis Missouri. Every now and then we’re approached by people who had been ordered deported at the immigration court. They’re wondering if their attorney made a mistake. We definitely review cases for people to take a look at it for them.

We’ve done a lot analysis for different people who come to ask for a second opinion to see if a mistake was made in their case. A lot of people come to us and they’re angry with their prior attorneys. In the vast majority of the cases, the attorney did everything right, and there’s not much that we can offer to them and in terms of an appeal or a motion to reopen or some kind of extraordinary relief like that.

There is a mechanism in immigration court for people who have been wronged buy the carelessness or the mistake of their attorney, and that’s called filing an ineffective assistance of council claim. Now you have to know that once you’ve been order deported, there are strict deadlines on filing for other forms of relief, like motions to reopen based on ineffective assistance of counsel, or if you’ve been order deported, in a absentia which means you are order deported, because you miss the court date, or you weren’t in court.

Generally you have 90 days from a general order of removal to file a motion to reopen or reconsider with the immigration judge. If you’ve been ordered deported in a absentia without being in court, you generally have an 180 days and these are pretty strict deadlines to file a motions to reopen or to reconsider. If you were ordered deported, because of the ineffective assistance of counseling, you might be able to get around those deadlines.

You should do everything you can to comply with the deadlines, if possible. If you want to make an ineffective resistance of council claim, how do you do it? Well there’s sort of three steps to it, and the immigration courts take a very harsh look at this. You have to comply with the rules, because they’re very strict. The first requirement is sign an affidavit and sets forth what happen in your case, and why you think that your attorney wasn’t effective.

You have to list all the reasons why you believe that your attorney screwed up your case, and how that prejudice you, how that cause you harm, how that would have change the result if the attorney had done their job properly. Not only they have to sign that affidavit you also have to forward it on to the attorney that you claim, screwed up your case and give them opportunity to respond. The way you do that, is you package the other …. Your affidavit, you let them know about the motion, and you give them the opportunity to sign the response and with you.

The third thing you have you to do, this is the hardest part of the whole prospect is, you have to actually file a bar complaint. The board of immigration appeals in immigration judges the entire of individuals making claims of ineffective assistance of council without them also filing bar complaints and they thought that these are being filed as a pretext in a way that sort of get around the requirements that you show that you shouldn’t be deported in the first place.

They put this requirement that you have to actually file a bar complaint with the state bar, where the attorney is licensed and give them the opportunity to respond there. Those are the three, those other requirements, you also have to show the prejudice that I mention earlier, you have to demonstrate that the result would have been different if the attorney had done his or her job effectively.

When I was a new immigration attorney, we came across an ineffective assistance of council claim at the very outside. That case was so egregious that I thought all ineffective assistance council claims were relatively easy, and I since come to learn over the years, that they’re actually pretty difficult to make. You can’t just assume that because of an attorney might have made a little mistake that the court’s going to reopen and undo the deportation order.

Ineffective assistance council claims are very hard to win, and I will tell you the story about the first one that I have though. A young man came to see me, his wife as in jail and have been ordered deported, because she do not appear in immigration court on her court day. The reason she did not appear in court on her court day was because her attorney never told her about the court date, and she was ordered removed in absentia that is without her being there.

Now her particular attorney had some interesting things going on with the time. He had been a state representative here in Missouri, and he ran an immigration practice on the side, so we sort of have two competing things going. The other issue for him was that he had been indicted by the Federal government to punish him for running an immigration scam, he’s been creating fake visas for other clients, a trucking company he had created employment visas for them.

The feds had come after him hard, and charge him in federal court with immigration fraud. By the time my client had been ordered lock up, this attorney had been disbarred and sentenced to jail. I actually have a lot of ordnance of his ineffectiveness and that was to file this motion to reopen, based on an ineffective assistance of counsel. We comply with the rules, we filed the affidavit, we gave him the opportunity to respond which she didn’t do because she was in jail.

We also filed a bar complaint. Having comply with each of those orders, the immigration judge, we open the case, and our client openly ended up getting her green card, because by that time she had long been married to US citizens. She has been approved a marriage application. For the attorneys of ineffectiveness, she would have shown up the court on her court date and not been deported.

Obviously we’re happy with that result, but you have to know these are hard cases to make you have to comply with each other requirements of the case, the main case on point is called Matter of Lozada. You have to comply with each of the Lozada requirements, in the hopes of getting an ineffective assistance of council claim in front of the judge. If you have any questions about this, you should definitely talk to an immigration attorney. These are complex matters, that are fact intensive.

They need a lot of evidence, and you need to be on the right side of the law as well. You definitely going to need an immigration attorney for an issue like this. If you have questions, or want to talk to me about this. Feel free to pick up that phone, and give me a call, 314-961-8200 or you can e-mail me jim@hackinglawpractice.com . Thanks.