CAN I REOPEN MY DEPORTATION PROCEEDINGS WHEN I RELIED ON THE ADVICE OF A NON-ATTORNEY?
A common problem for which persons have come to our office in search of a solution is what to do when faced with an order of deportation. In previous editions of this article, we have explored the reopening of deportation proceedings and the rescission of a deportation order in situations where the person subject to the proceedings did not receive notice of the proceedings. Underlying the rule allowing for the reopening of deportation proceedings and rescission of a deportation order if no notice was received is the fundamental principle that one is entitled to due process in the proceedings. If a person subject to deportation was not provided an opportunity to be heard in the proceedings, then the proceedings may be reopened.
Similarly, if a person did not receive effective representation from his attorney in deportation proceedings, and the proceedings resulted in an order of deportation, one may file a motion to reopen based on ineffective assistance of counsel. It has been stated that a right to due process includes a right to competent representation. This rule has been limited to cases in which a person was ineffectively assisted by an attorney. In Hernandez v. Mukasey, the 9th Circuit Court of Appeals confronted the issue of whether the bases for the reopening of deportation proceedings can be broadened to include cases in which a person was ineffectively assisted by a non-attorney.
In Hernandez, petitioners were assisted throughout the course of the deportation proceedings by someone they knew to be a non-attorney. In the deportation proceedings, petitioners sought relief from deportation for entering the United States without inspection. The relief was denied, and ultimately petitioners moved to reopen the proceedings, arguing that they did not have an opportunity to properly present their case because of the deficient advice of the non-attorney. The court held that knowing reliance on a non-attorney cannot form the basis of a claim of ineffective assistance of counsel in a removal proceeding.
The court’s holding in Hernandez is significant in that if one employs a non-attorney to assist in deportation proceedings, and such assistance is deficient and results in a deportation order, a motion to reopen may not be made. The Court stated that the protection provided by the ineffective assistance of counsel claim is in large part a result of the presumption that attorneys have special skills and duties. Accordingly, if you are in deportation proceedings, it is advised that you consult with an experienced attorney.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail firstname.lastname@example.org; visit at www.kenreyeslaw.com