October 19, 2020 Top Story

Immigration Decision Holds Ethical Lessons for Lawyers

The case highlights the need for careful documentation

By C. Thea Pitzen

A U.S. Court of Appeals has held that ineffective assistance of counsel claims in immigration cases require actual notice to counsel, illustrating the strict application of procedural requirements. ABA Section of Litigation leaders say the decision highlights potential ethical pitfalls for practitioners.

An attorney must be notified of an ineffective assistance of counsel claim, illustrating strict application of procedural requirements

An attorney must be notified of an ineffective assistance of counsel claim, illustrating strict application of procedural requirements

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Lack of Notice Is Fatal to Ineffective Assistance of Counsel Claim

In Point du Jour v. U.S. Attorney General, the petitioner appealed an order of removal to the Board of Immigration Appeals (BIA) and moved to remand the case based on a claim of ineffective assistance of counsel. The BIA denied the appeal and motion to remand, concluding that the petitioner failed to satisfy all procedural requirements for ineffective assistance of counsel claims set forth in Matter of Lozada.

The Lozada test requires that first, the motion must be “‘supported by an affidavit of the allegedly aggrieved respondent . . . set[ting] forth in detail the agreement that was entered into with former counsel’ with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard[.]” Second, “former counsel must be informed of the allegations and allowed the opportunity to respond[.]” Third, the motion must “‘reflect whether a complaint has been filed with appropriate disciplinary authorities’ with respect to any violation of counsel’s ethical or legal responsibilities, ‘and if not, why not.’”

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