BIA - appealing an absentia ruling from immigration court (attorney error)

I was recently helping a colleague to work through an appeal for a client who came to her with a missed court hearing. Generally, the first line of defense is to file with the original court, and provide evidence that the Court date was not received. See generally, INA §240(b)(5)(C)(ii) and Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988). But what happens when you missed your date because your attorney did not tell you of the date, or the date your attorney told you was wrong? The following is the outline of the discussion I had with my colleague, Ms. Tanya Fajardo -- a talented immigration lawyer located in Chicago (Fajardo Law Group, LLC).

My client is faxing me a signed affidavit explaining how the attorney gave him the wrong hearing date. I already received an e-mail scanned copy of the attorney's affidavit fessing up to his office providing the client w/ wrong date, as well. So I have the two most important affidavits that prove my client did not intentionally skip his hearing.

Yes. However, you need to be prepared to argue that his reliance was reasonable. What case law/BIA holdings have you found that show that misinformation from the attorney is grounds for re-opening?

For example, see this summary:
[extracts from: Legal Action Center, with liberal modifications]
Service on the attorney of record constitutes service on the respondent.

INA §§239(a)(1)&(2)

Matter of Peugnet, 20 I&N Dec. 233, 237 (BIA 1991)

Therefore, if the attorney of record is properly served, in most cases, a motion to reopen for lack of notice will fail even if the attorney did not inform the respondent of the hearing. The respondent may have an argument that counsel’s failure to properly notify him or her of the hearing was ineffective assistance of counsel and amounts to an exceptional circumstance.
See Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996).

However, the respondent generally must comply with the requirements for ineffective assistance of counsel claim as set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

(1) do you recommend that I still have the attorney mail me the original signed affidavit vs. submitting a faxed copy.

No, you don’t need the original. No one cares. If someone actually doubts the authenticity, they’ll ask for it.

(2) this is mostly a fact-based apellate brief, so do you recommend I just stick to arguing the facts and attach exhibits, or should I also reference any cases regarding ineffective assistance of counsel or something mirroring my set of facts (if such a case exists).

An appeal case is always a legal argument. Period. So, if you’re in appeals court (even good ‘ole BIA), ye better be a’ arguin’ law! See above summary for a start. Google is your friend. Search vigorously.

(3) I am basically going off of the AILA practice toolkit BIA appeal template - intro, statement of facts, issues presented, standard of review, summary of argument, argument, & conclusion.

Ummm…okay. BIA doesn’t really care. You should see the crap they have to wade through. That outline is the basic outline for a Fed appeal. So…you’re safe to follow it.

(4)Have I covered everything here? Is there anything pertinent you think I should address or include that I haven't mentioned?

BE SURE TO INDICATE YOUR CLIENT IS ELIGIBLE FOR RELIEF. If you don’t BIA won’t send it back for processing (i.e. remand).

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.