Two different outcomes on reopening based on vaguely distinguishable facts.

Sunday, July 24th, 2011
By: Jonathan MontagJ.D.

The courts of appeal perennially must deal with the issue of ineffective assistance of counsel. The issue is whether a case should be reopened if an attorney made a mistake in the case. The issue highlights a conflict between two conflicts in law in general – an interest in finality versus an interest in fairness. The interest in finality is that a case must end at some point. An alien has his day in court and he has his appeals. When his appeal is resolved, a multi-year process, there is a resolution, win or lose. After several years of litigation, the case must end. The other interest is fairness. If an alien who is living in the United States and has established close ties to this country, be them familial, professional, or something else, and if an alien faces removal and the rupturing of these ties, or if removal means the potential for extreme hardship or even death, the process that led to his deportation should be fair. If he process was marked by prejudicial errors by a former attorney or by the courts, such that without these errors the foreigner may have won his case, it is simply not fair to deport the alien.

Arguments and counter-arguments mark this dilemma. In deciding whether the hearing was unfair becomes a question of whether the errors committed  in the case would have led to a different result, i.e., was there prejudice. Also, is what is considered an error is a “true” error or what is perceived as an error only with 20-20 hindsight. Perhaps the the course the attorney took was a tactical decision – and in every case there are tactical decisions to be made.

Congress, which writes the immigration laws, is concerned with finality and has written many amendments to the immigration laws in the last twenty years to limit motions to reopen and rights to appeal to favor finality. Decisions in the courts of appeal often come down to panels that favor finality and those that favor fairness.

A good example can be found in a Ninth Circuit case that was issued this week –  on July 21, 2011, Singh v. Holder. What happened in Singh v. Holder is that an Indian man, Mr. Singh, came as a visitor to the United States in May 1998. He applied for asylum in June 1998. The asylum office which adjudicates such applications would not grant asylum and instead referred the case to the immigration court in August 1998. His case was heard in the immigration court five years later, in 2003. He was denied asylum and, instead of being deported, was granted voluntary departure (though he should not have, as only if an alien has been in the United States for a year before being sent to immigration court can he be granted voluntary departure). Through an attorney, Mr. Singh timely appealed the decision of the immigration judge to the Board of Immigration Appeals. Then, Mr. Singh got married in 2004. His attorney should have filed a motion to remand to the BIA, but instead did nothing. The BIA denied the appeal on February 1, 2005, and granted thirty days of voluntary departure. Mr. Singh learned of the denial by the BIA from his attorney in February 2005 and hired the attorney to file a petition for view, an appeal to the Ninth Circuit Court of Appeals. The attorney did not inform Mr. Singh about the voluntary departure problem and did still did not file anything with the BIA, as he should have. The attorney, in April 2005, filed a motion to remand to the Ninth Circuit, which was not the proper place to file a motion. The BIA was. By this time the voluntary departure period expired. The Ninth Circuit eventually denied the motion to remand because it was improperly filed with the BIA, and then denied the petition for review based the denial of the asylum claim in 2007, nine years after Mr. Singh first applied for asylum.

Mr. Singh hired new counsel, the exemplary Attorney Robert Jobe of San Francisco, who filed a motion to reopen with the BIA, seeking to reopen the case based on Mr. Singh’s marriage to a United States citizen. Mr. Singh faced two obstacles in his motion. First, motions to reopen must be filed by the BIA within 90 days of the decision of the BIA. Second, if an alien overstays his voluntary departure period, he is not allowed to adjust status, i.e., avoid deportation by becoming a permanent resident. These are two examples of laws Congress passed to promote finality. Because of these two statutory obstacles, the BIA denied the motion to reopen. The BIA decided that Mr. Singh’s first attorney’s decision to file a motion to remand to the Ninth Circuit instead of motions to the BIA was a tactical decision. It also decided that because Mr. Singh overstayed his voluntary departure, he was ineligible to adjust status. The result of reopening would not change the outcome of the case because Mr. Singh had no new relief. Thus, he was not prejudiced by anything his former counsel did. Mr. Singh, through Mr. Jobe, appealed the denial to the Ninth Circuit.

The Ninth Circuit, on July 21, 2011, reversed the BIA and reopened the case. The Ninth Circuit concluded that the ineffective assistance of Mr. Singh’s first attorney (ineffective in not filing motions to the BIA or working to stay the period of voluntary departure) cured the problem of filing outside of the 90 days as ineffective assistance of counsel is a recognized basis to toll the 90 day deadline to file a motion to reopen. As for the the prejudice issue, the Ninth Circuit held that the bar to adjusting status because of overstaying the period of voluntary departure only applies in a case if the alien voluntarily overstayed his voluntary departure period. Because Mr. Singh was never told by his first attorney that he was granted voluntary departure by the BIA, he did not voluntarily overstay it. This was a great victory for Mr. Singh.

Now, for fun, let’s change the facts a little. Suppose in May 2005, the first attorney called Mr. Singh into his office and said, “The BIA denied your appeal and granted you 30 days of voluntary departure, but do not worry about the voluntary departure. You do not need to leave the United States because you are married to a United States citizen and we will work out the technical details. You can trust me as a licensed attorney and “officer of the court” that this will all work out. I have gotten adjustment of status for many Indians just like you and I know what I am doing. Just write your check and relax.”

You might think – the attorney erred in Mr. Singh’s case by not dealing with the voluntary departure issue and in not informing Mr. Singh of the voluntary departure issue. Under my new facts, the attorney erred in not dealing with the voluntary departure issue and in either lying about or being completely misinformed about the voluntary issue. The cases are legally indistinguishable – an alien was eligible for relief and his attorney made mistakes about voluntary departure so that the alien could not take advantage of them. The outcome should be the same – reopening.

If that is what you think, you would be wrong. The Ninth Circuit, in Granados-Oseguera v. Mukasey, came to a different conclusion specifically because in Mr. Granados-Oseguera did not depart before his voluntary departure period expired and apparently was aware of his grant of voluntary departure. The Singh court was aware of the Granados-Oseguera case and distinguished it by writing this in a footnote:

Granados-Oseguera v. Mukasey, [] does not control. There, petitioner was fully aware of the voluntary departure order but remained in the United States in reliance on counsel’s erroneous advice. In this case, Singh did not receive a copy of the BIA’s decision and order of voluntary departure, and has alleged that his counsel did not tell him about the order of voluntary departure in response to his query about the contents of the BIA’s decision.

Based on the reasoning of Singh, Mr. Singh is better off than Mr. Granados-Oseguera because Mr. Singh’s lawyer did not tell him about the voluntary departure that he advised Mr. Singh to ignore while Mr. Granados-Oseguera’s lawyer presumably told Mr. Granados-Oseguera about the voluntary departure he advised Mr. Granados-Oseguera to ignore. To me, this way of distinguishing the cases is unsatisfactory. In both cases it was attorney error that led to overstaying voluntary departure. Besides, nothing in Granados-Oseguera indicates what Mr. Granados-Oseguera actually knew. The cases may as well be distinguished because Mr. Singh is a vegetarian and Mr. Granados-Oseguera an omnivore – though, like the way the cases were actually distinguished, this fact about Mr. Granados-Oseguera is not actually in the record.

The solution here is not to screw Mr. Singh. The solution is to realize that if an attorney gives an alien advice not to depart, the failure to depart is not voluntary. This type of attorney error is not rare. It is perverse to reward one alien because his attorney was wrong and uncommunicative while another was wrong and just completely misinformed and/or crooked. Posted July 24, 2011.

 


 

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