Aris v. Mukasey (2d Cir. 2/20/08)

KATZMANN, Parker, Raggi

We write today to establish what we would have thought self-evident: A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia (or the ramifications thereof) has provided ineffective assistance. We further clarify that such misadvice may constitute ineffective assistance of counsel even where it is supplied by a paralegal providing scheduling information on behalf of a lawyer.

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Facts: Failed to attend removal hearing because paralegal told him that none was scheduled (b/c associate failed to note the hearing on the firm docket sheet). IJ and BIA refused to reopen. Subsequent motion by new pro bono firm clarified that client had been told that there was no hearing. 

1.  BIA failed to discuss the fact that Petitioner was told that he had no hearing on the scheduled hearing date.

   The BIA’s February 26, 2007 opinion, moreover, did not discuss this evidence. The omission is striking in light of BIA precedent that misadvice from counsel concerning a petitioner’s need to appear at a hearing constitutes exceptional circumstances warranting the reopening of a removal order entered in absentia. See In re Grijalva-Barrera, 21 I. & N. Dec. at 474. Because this evidence had not been presented earlier, neither the IJ nor the BIA had previously considered it. Accordingly, the BIA erred when it rested on its prior decisions in rejecting this claim. In not addressing the petitioner’s new evidence of ineffective assistance or providing a rational explanation for its departure from its own precedent concerning when such ineffectiveness constitutes exceptional circumstances, the BIA abused its discretion. See Douglas v. INS, 28 F.3d at 243.

2.  Notes that Due Process is implicated in ineffective assistance

   While binding Second Circuit precedent holds that aliens in deportation proceedings have “no specific right to counsel,” the Fifth Amendment does require that such proceedings comport with due process of the law. Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005). Because the attorney conduct described herein so clearly ran afoul of the standard embodied in In re Grijalva-Barrera, 21 I. & N. Dec. 472, we need not pursue the issue of due process. Nevertheless, given the disturbing pattern of ineffectiveness evidenced in the record in this case -10- (and, with alarming frequency, in other immigration cases before us), we reiterate that due process concerns may arise when retained counsel provides representation in an immigration proceeding that falls so far short of professional duties as to “impinge[] upon the fundamental fairness of the hearing.” Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d Cir. 1992).

3.  Comments on calendar slip-up by firm, and subsequent denials

   We appreciate that, unfortunately, calendar mishaps will from time to time occur. See, e.g., Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (en banc). But the failure to communicate such mistakes, once discovered, to the client, and to take all necessary steps to correct them is more than regrettable -- it is unacceptable. It is nondisclosure that turns the ineffective assistance of a mere scheduling error into more serious malpractice. See generally Lisa G. Lerman, Lying to Clients, 138 U. Pa. L. Rev. 659, 725 (1990).

Atty: Tanisha Massie, Cleary Gottlieb

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