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Matthew Kolken on Deportation And Removal

On what planet does it make sense to require an individual to file a Bar Complaint against a former lawyer who is no longer practicing law because they were disbarred?

Rating: 5 votes, 5.00 average.

I just
argued a case before the Second Circuit Court of Appeals that partially
involved the issue of when it is necessary to file a bar complaint in
conjunction with a motion to reopen due in part to the ineffective assistance of
previous counsel.

In
immigration law an individual is protected by the right to counsel.  Part
in parcel to that right is that if you hire a lawyer, that lawyer is supposed
to be competent to handle your case.  If a lawyer commits fatal non
strategic errors which result in an individual being ordered removed by an
Immigration Judge the legal mechanism to correct the lawyer's error is a motion
to reopen based on ineffective assistance of counsel.

If an
aggrieved individual claims that his or her former lawyer made a fatal error
the law requires the individual to first file a bar complaint against their
former lawyer, and provide the lawyer with notice of the grievance to afford
the lawyer an opportunity to respond to the complaint.  Once this
preliminary step is completed the motion may then be filed with either the Immigration Court
that ordered removal, or alternatively with the Board of Immigration Appeals if
the case proceeded that far.

So far on
paper that sounds like a logical and rational requirement.  But what about
in the instance where an individual has been prejudiced by a lawyer who is no
longer practicing law because he or she has been disbarred as a result of
malfeasance.

In this example I argued that it is wholly unnecessary, illogical, and futile to
require an alien to file a bar complaint against an individual who has been
disbarred and is no longer practicing law, and such requirement is an
unnecessary burden to the complaining party and to the State.

Attorney
Grievance Committees are civil bodies that police the activities of lawyers
under their jurisdiction.  The ultimate penalty that an Attorney Grievance
Committee may impose on a practicing lawyer is disbarment, and as a result
there is no penalty that may be imposed on an individual who is no longer a
member of the bar.  As such filing a bar complaint against a disbarred
attorney is futile.  Moreover, should an individual be practicing law
without a license it would be a criminal matter under which a civil body has no
authority to redress.  Although I have yet to get a decision on my
argument, the Second Circuit verbally seemed to agree.

The bar
complaint requirement contributes to the filing of baseless and frivolous state
bar complaints against good lawyers, and should be removed as a prerequisite to
filing motions to reopen.  If anything the Immigration Court or Board of
Immigration Appeals should be making the determination as to whether an
individual has been harmed by prior counsel's actions or inaction, not an
Attorney Grievance Committee who has little to no immigration law experience
and is in no way capable of determining if an individual has been aggrieved
under the standards set forth by Congress relating to U.S. immigration laws.>>

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Comments

  1. MGH's Avatar
    AN EXAMPLE WOULD BE IF YOU HIRED AN IMMIGRATION ATTORNEY WHEN YOU BECAME DETAINED BY FORMER INS, AND THAT ATTORNEY DID NOT SHOW UP FOR YOUR HEARING, AND YOU WERE FORCED TO REPRESENT YOURSELF, AND HE ALSO TOOK OFF WITH YOUR $5000.00 WHAT CAN YOU DO?. GOOD QUESTION. WHAT HAPPENS WHEN YOU MAKE A COMPLAINT. GOOD QUESTION. FOLLOW MGHJUSTICE ON TWITTER TO FIND OUT MORE.
  2. ABC's Avatar
    Ninth Circuit agrees: Morales Apolinar v. Mukasey, 514 F.3d 893 (9th Cir. 2008)
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