Immigration Blog

Learn more about immigration law through these articles

Deportation Avoided! – Clients Succeed on Appeal Based on Ineffective Assistance of Counsel

Dec 11, 2012 | Appeal, BIA

I recently succeeded on an appeal and a remand motion at the Board of Immigration Appeals, where my clients were not informed about their eligibility for relief from deportation either by the Immigration Judge or their own (former) lawyer!

During my clients’ initial removal proceedings in immigration court, everyone just focused on whether my clients could adjust their status based on a religious worker visa petition that was “approved” but revoked under certain procedural circumstances.  No one bothered to assess whether my clients, a married couple who had been in the United States for over 20 years and have U.S. citizen children, were eligible for any other form of relief, such as cancellation of removal for non-permanent residents.  Their own lawyer at the time kept telling them that the only way they could become permanent residents would be to adjust their status and keep arguing that the visa petition should not have been revoked.  That lawyer was fully aware that my clients had been present in the United States for over 20 years and that they had U.S. citizen children.  But she never advised my clients that they had another way to apply for permanent residency!

When the argument concerning the validity of the visa petition failed, the lawyer did not make any other arguments.  The lawyer basically told the court that the clients had no other options.  Even the immigration judge failed to properly review the clients’ situation to see if they qualified for any other form of relief.

After they were ordered removed, the clients filed an appeal and decided to change lawyers.  That is when they came to me.  Immediately, I informed them that they should have been found eligible for apply for cancellation of removal for non-permanent residents.  This was the first time they even heard of anything like this!  When they told me that neither their former lawyer nor the immigration judge ever talked about this form of relief, I realized that a claim of ineffective assistance of counsel was appropriate against my clients’ former lawyer.  Working closely with my clients, I prepared their appeal and asked the Board of Immigration Appeals to remand (send back to the immigration court) my clients’ case, so that they could apply for cancellation of removal, which opportunity they lost the first time they were in court due to the ineffectiveness of their former lawyer and the immigration judge’s own failure!

After waiting for over a year and a half for a decision, I just received the Board’s decision remanding the case to the immigration court!  The Board agreed that the immigration judge and the clients’ former lawyer should have discussed my clients’ eligibility for cancellation of removal.

Click here to read the Board of Immigration Appeals’ decision.  All identifying information has been redacted to protect clients’ privacy.

My clients are thrilled that they will now have a second chance to pursue permanent residency in the United States.  Even though cancellation of removal cases are not easy to win, the fact that will at least get a chance to develop their case and present it to the judge is a huge victory, especially where the judge and the former lawyer both failed to provide this opportunity to my clients.

According to my clients, “this is the best Christmas gift ever!”  I totally agree!

Ruchi Thaker