When Your Immigration Lawyer is Ineffective

At the law offices of Haitham Ballout we are often called to correct other attorneys' mistakes, or ineffectiveness. While most immigration attorneys are competent and take pride in their work, some do make mistakes and do not provide effective assistance. Regrettably, some of the mistakes can and do lead to severe and harsh immigration consequences such as final deportation orders against the non U.S. citizen client, or denial of applications.

To correct such ineffectiveness, we highly encourage seeking a second opinion from our attorneys. We understand that deportation means breaking up families and uprooting.

What can our experience deportation defense lawyers do for you?

1. We can get a complete copy of your file directly from the Department of Homeland Security OR from your former attorney - attorneys are required to give copies to their client at a reasonable charge;
2. We will thoroughly review the records to determine whether prior counsel was ineffective;
3. If we determine that prior counsel was ineffective, and depending on the time and place of events, we may recommend filing a motion to reopen based on ineffective assistance of counsel to give the non-citizen a real chance to present his/her case fully.

The Legal Standard:

To prevail on an ineffective assistance of counsel claim, the petitioner must make two showings.

First, the petitioner must demonstrate that counsel failed to perform with sufficient competence. Cases on point are: Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). “We do not require that [petitioner’s] representation be brilliant, but it cannot serve to make [the] immigration hearing so fundamentally unfair that [petitioner] was prevented from reasonably presenting his case.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004) (holding that counsel’s failure to investigate and present the factual and legal basis of Lin’s asylum claim, attend the hearing in person, advocate on his behalf at the hearing, and file brief on appeal, constituted ineffective assistance of counsel).

Second, petitioner must generally show that she was prejudiced by her counsel’s performance. Cases on point: Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005); see also Torres-Chavez v. Holder, 567 F.3d 1096, 1101 (9th Cir. 2009) (rejecting petitioner’s contention that he received IAC where attorney conceded petitioner’s alienage and did not inform him about the advantages of remaining silent); Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008). A showing of prejudice can be made if counsel’s performance “was so inadequate that it may have affected the outcome of the proceedings.” Iturribarria v. INS, 321 F.3d 889, 899-90 (9th Cir. 2003) (internal quotation marks omitted); see also Morales Apolinar v. Mukasey, 514 F.3d 893, 897 (9th Cir. 2008); Mohammed, 400 F.3d at 793-94; Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857-58 (9th Cir. 2004) (per curiam); cf. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004) (stating that alien must show “substantial prejudice, which is essentially a demonstration that the alleged violation affected the outcome of the proceedings”) (internal quotation marks omitted), amended by 404 F.3d 1105 (9th Cir. 2005).

Procedurally, an alien asserting ineffective assistance of counsel must:

1. provide an affidavit describing his agreement with counsel;
2. inform counsel of the allegation against her and provide her with an opportunity to respond; and
3. indicate whether a complaint has been filed with the appropriate disciplinary authorities, and if one has not been filed, explain why not. Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988).