Lawyer to INS: Deport my clients

by Atty Emmanuel S Tipon

A Caucasian lawyer was asked by an overstaying Latino husband and wife to help legalize their status in the U.S. The lawyer brought the couple to immigration authorities and asked them to place his clients in deportation proceedings. No, it was not because they did not pay him. That would have been foolish. How would he get his fees if they were deported?

The lawyer told the couple that since they had resided in the U.S. for over seven years, they qualified for “suspension of deportation,” a form of discretionary relief for aliens who are deportable. He told them that this was one way to legalize their status. His plan was that once deportation proceedings started, he would move for suspension of deportation with proof that the aliens had lived in the U.S. for at least seven years. At the first hearing, the attorney learned that the law on suspension of deportation had been repealed. Another form of relief called “cancellation of removal” had been established, Immigration and Nationality Act § 240A. It required that an alien must live continuously in the U.S. for ten years to be entitled to relief. The aliens could not meet this 10-year requirement.

INEFFECTIVE ASSISTANCE OFCOUNSEL?

The Immigration Judge ordered the aliens deported, holding that they were not eligible for cancellation of removal. The aliens appealed to the BIA and later to the court, charging their lawyer with ineffective assistance in violation of their due process rights for his ignorance of the amendatory statute which increased the residency requirement to be eligible for relief. They said that they were misled by their lawyer’s legal advice. They faulted him for initiating their deportation without sufficiently inquiring about their eligibility for relief. They said that the attorney’s ineptitude brought them to the attention of immigration authorities, when they had been living respectably, albeit illegally, in the United States for a period just short of the time for eligibility to request cancellation of removal. They might have met eventually the 10-year requirement if the lawyer had not brought them to immigration authorities.

The court held that they were not deprived of due process. To prevail, the aliens must establish that, but for the lawyer’s legal advice, they would have been entitled to continue residing in the United States. It was too speculative for them to claim that but for the attorney’s legal advice, they would not be facing deportation or would have been granted discretionary relief. The fact that they had a peaceful life working and raising their children did not obviate the fact that they were in this country illegally and did not meet the ten-year residency requirement for cancellation of removal. Therefore, they could not have been prejudiced by their attorney’s ineffective assistance. Cancellation of removal is discretionary with the Immigration Judge. Failure to be granted discretionary relief does not amount to deprivation of liberty without due process of law. Huicochea-Gomez v. I.N.S., 237 F.3d 696 (6th Cir. 2001).

RECOMMENDATION:  Always seek a second opinion when a lawyer gives seemingly stupid advice. If you cannot distinguish between stupid and sane advice, seek a third opinion.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.ImmigrationServicesUSA.com;  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)