VIDEO: St. Louis Immigration Attorney Jim Hacking Discusses Recent BIA Decision Allowing Alien to Reopen Case due to ineffective assistance of counsel

Hi, I’m Jim Hacking, immigration attorney practicing law here in St. Louis, Missouri. Today we want to tell you about a recent case that was handed down by the Board of Immigration Appeals. In this case a young man had pleaded guilty to assault in a second degree in criminal court in Maryland.

When he pleaded guilty neither his attorney nor the court advised him of the immigration consequences of his plea. So this fellow was not a US citizen, and even though he plead guilty in court and thought that he wasn’t going to have any real-world consequences as a result of that plea, he did get placed into removal proceedings, deportation proceedings.

The immigration judge based on that assault on a second degree charge found that he was removable. His case went to the Board of Immigration Appeals and he said to himself, “Wait a minute, no one explained to me that I was going to be deported as a result of this plea.”

The Supreme Court handed down a very important case called Padilla vs Kentucky back in 2010. And the Padilla case says that if an immigrant is not fully advised of the immigration consequences of their plea then they could come back to the State Court later, try to get the conviction overturned due to ineffective assistance of counsel. The Padilla court said that an immigrant has to have a knowing and a voluntary waiver of their right to go to trial. Otherwise there’s a sixth amendment constitutional violation, and they can go back to court to get their conviction overturned.

Now in this case the Board of Immigration Appeals had already ruled that he was deported, but they decided to reopen the case on their own motion. A lot of times people will ask the Department of Homeland Security to join in in that motion but apparently they would not. So really the alien’s only recourse was to go back to State Court to get that conviction overturned, which he did, demonstrating that both the sixth amendment of the Federal Constitution and [inaudible 02:04] law he had received ineffective assistance of counsel.

Then he took that ruling, that vacation of his criminal plea, went back to the Board of Immigration Appeals, but at that point he had already been ordered removed … his removal order had already been appealed and denied and the alien and his lawyer asked the Board of Immigration Appeals to voluntarily reopen the case. And that’s exactly what they did. It’s called the motion to reopen sua sponte. That means on the Court’s own motion.

It’s a rare relief in Immigration Appeals. It is something that an immigration attorney knows about and can apply for. It’s typically used in those situations when the Department of Homeland Security doesn’t agree with reopening the case. In this particular case the government did not file a memo in opposition and the Board of Immigration Appeals must have felt comfortable enough that a wrong had occurred here and they allowed the alien, having vacated his plea, to reopen his immigration appeal and to send the case back to the immigration judge for further proceedings.

We suspect that with the vacated criminal plea that the immigration judge will terminate proceedings unless there’s some other way for this young man to be put back into deportation proceedings.

Motions to reopen sua sponte, motions to jointly set aside a BIA decision, these are rare forms of relief. They’re pretty sophisticated things and you’re going to need the help of an immigration attorney to pull it off. If you have any questions about motions to reopen about removal give us a call, 314-961-8200 or you can email me Thanks.

(h/t Immigrant & Refugee Appellate Center –