Ineffective Assistance By “Immigration Consultant” Could Get Alien Deported And Consultant Could Be Sued For Fraud

by Emmanuel Samonte Tipon, Esq.

Thousands of people asking for immigration benefits often seek the services of people who are not lawyers, such as travel agents, tax preparers, real estate agents, notaries, paralegals, and other creatures whom we shall refer to in this article as “immigration consultants”.

Their motive is to save money, thinking that attorneys are “expensive”. What constitutes “expensive” is “in the eye of the beholder”. Contact this writer and he will tell you what is a reasonable price for the services you seek.

These immigration consultants could do the alien a lot of damage including placing them in peril of being deported and subjecting them to stress and spending more money to defend themselves than what they “saved”.  

Jose entered the U.S. on a B-2 tourist visa but overstayed and legacy  INS commenced deportation proceedings against him. Jose hired an immigration services company, Entra, to provide him with representation. Adela owned Entra and told Jose that she was a paralegal but had immigration attorneys and would be represented by one of them, Alfred. Jose was told that a change of venue would be sought since he lived in another state. Jose went to the Immigration Court but no attorney represented him.

The Judge denied the change of venue motion and told Jose to return on a specified date otherwise he would be deported. Jose contacted Adela who allegedly told him that their attorney would not appear in court for him, if Jose went to court without an attorney he would be deported, and that because Jose had a pending application for adjustment of status he could not be deported. Jose did not attend the next hearing and the IJ ordered him deported in absentia.

Jose received a letter from INS to report for deportation. Jose showed the letter to Adela who told him that their lawyer had “taken care of” the in absentia order of removal by filing the adjustment of status petition with INS. (When a person is in removal proceedings, the application for adjustment of status must be filed with the Immigration Court). Adela reassured Jose that the lawyer would file a motion to reopen and formally vacate the in absentia order.

A lawyer from Entra filed a timely Motion to Reopen and Reconsider on the ground that the motion for change of venue had been wrongly denied, but it never mentioned the pending adjustment of status petition or gave any reason for Jose’s failure to appear at the scheduled hearing. The IJ denied the motion. Jose, who was not served with a copy of the order, believed that the motion had been granted. Later, when Jose asked the other attorney working for Adela if he could travel to his home country to visit his ailing mother, Jose was told that the removal order had not been vacated.

Immigration consultant and lawyers sued for fraud
Jose filed a civil lawsuit against Adela, Entra, and the two lawyers working for Adela.

Jose claimed that Adela and the lawyer Alfred defrauded him by leading him to believe that Alfred was doing all of his legal work, by making fraudulent representations about the status of his case, and by telling him that if he went to the Immigration Court for his hearing he would be deported. He said that were it not for this fraud,  he would have appeared at his removal proceedings and an in absentia order would not have been issued. Jose, represented by a new lawyer filed a second motion to reopen.

The IJ denied it because it was filed outside the 180-day window for seeking rescission of Jose’s in absentia order of removal and he did not demonstrate that his failure to appear was due to “exceptional circumstances”. The BIA dismissed the motion to reopen.

The Court of Appeals held that the 180-day time limitation is analogous to a statute of limitation and is subject to equitable tolling, and that tolling may be appropriate where there is fraud. The Court remanded the case to the BIA to determine whether there was fraud. Borges v. Gonzales, 402 F.3d 398 (3rd Cir. 2005).

Alien’s right to effective assistance of counsel
The Court of Appeals said: “The Fifth Amendment entitles aliens to due process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). This is a right that must be strictly protected because deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom.” Bridges v. Wixon,326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). Furthermore, aliens have a statutory right to counsel, see 8 U.S.C. § 1362 (1952) (amended 1996), and a constitutional right to counsel based on the Fifth Amendment’s guarantee of due process of law. Ponce-Leiva v. Ashcroft,331 F.3d 369, 374 (3d Cir. 2003).

Implicit in the right to counsel is the requirement that the assistance rendered not be ineffective. “Ineffective assistance of counsel exists where, as a result of counsel’s actions (or lack thereof), `the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.'” Saakian v. INS,252 F.3d 21, 25 (1st Cir. 2001) (quoting Bernal-Vallejo v. INS,195 F.3d 56, 63 (1st Cir. 1999)).”

Similar cases
For cases similar to Borges v. Gonzales, 402 F.3d 398 (3rd Cir. 2005), see Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999), involving a person posing as an attorney, and Varela v. INS, 204 F.3d 1237 (9th Cir. 2000), involving a person pretending to be an attorney’s assistant.

Moral lesson
Jose has fought his case for over 6 years.  He was placed in jail. Can you imagine the stress he has suffered and the thousands of dollars and time he has spent in his fight? His fight is not over. The Court of Appeals remanded the case to the BIA to determine whether fraud was committed. Jose had been detained for over a year at the time the Court of Appeals decided the case. He still had to file an application for his release the outcome of which remained uncertain. If only he had hired an excellent immigration attorney in the first place, he would have avoided these.

ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the case notes and annotations for the entire Immigration and Nationality Act published by The Lawyers Co-operative Publishing Co. and Bancroft-Whitney Co. (now Thomson Reuters). He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon.  They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: attorneytipon@gmail.com  filamlaw@yahoo.com.  Website: https://www.tiponimmigrationguide.com

The information provided in this article is for general information only. It is not legal advice. Publication of this information is not intended to create, and receipt by you or reading by you does not establish or constitute an attorney-client relationship.