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Public Service Announcement on Ineffective Assistance of Counsel in Light of Matter of W-Y-C-
This week there have not been any decisions published by either the Board of Immigration Appeals or the Ninth Circuit. However, in light of last week’s decision by the BIA in Matter of W-Y-C- & H-O-B-k, 27 I.&N. Dec. 189 (BIA 2018), I am making this public service announcement. Do not hesitate to file a Motion to Reopen for Ineffective Assistance of Counsel when you get an asylum case where the original attorney did not craft the right particular social group. You need to Lozada it, send the complaint to the State Bar, and file a Motion to Reopen with the BIA or the Court with the proper particular social group. In the interest of full disclosure, in the late 1980’s early 1990’s I was a law clerk for the D.C. Office of Bar Counsel, and later I was a staff attorney for the Attorney Registration and Disciplinary Commission for the Supreme Court of Illinois. I think my background makes me more open to filing a bar complaint against another attorney. Because, it’s likely that nothing bad will happen to the attorney. In my experience, unless the attorney stole or commingled client funds the chances of the attorney being disciplined are next to nil. (There are exceptions, but the attorney misconduct has to be egregious for a complaint to be filed).
I checked the most recent State Bar annual report (April 2017) and here are the interesting numbers that I found. In 2016, the State Bar of California had 191,464 licensed attorneys and another 58, 874 inactive attorneys. In 2016, 15,240 cases were closed by the State Bar and 672 formal charges were filed. In 2016, 191 attorneys were disbarred, and 202 attorneys were suspended. If you file a complaint for an attorney who did not create the proper social group, the State Bar will likely not engage in any disciplinary action and you will be able to get the case reopened to obtain relief for your client.
For those of you, who are not familiar with Lozada, it is a BIA decision from 1988 that gives you the steps for filing a motion to reopen based on ineffective assistance of counsel. Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988). The decision states that if you are filing a Motion to Reopen for ineffective assistance of counsel (and I am grossly oversimplifying here), you need to: 1) Have the client write a declaration stating that s/he hired the attorney, and what the scope of the representation included (if you have a retainer agreement add that too). 2) The new attorney must send a letter to the former attorney with a copy of the declaration, explain what the first attorney did wrong, give them time to respond, and tell the attorney that you will be filing a complaint with the State Bar. 3) You must wait for the attorney to respond (I usually give the attorney 10 days) and then you file the declaration, your letter, and a letter explaining what the attorney did wrong to the State Bar. 4) You then file everything you submitted to the State Bar, in your Motion to Reopen. There is some discussion about whether it is necessary to file the complaint with the State Bar. My feeling is, if the attorney crafted the wrong particular social group, the State Bar is not going to pursue any disciplinary action, and this way, the IJ or the BIA cannot deny the case because you did not file a complaint with the State Bar. It takes that issue off the table. My person experience is that good attorneys will help you with a Lozada complaint against them and bad attorneys need it to be filed anyway. No one wants to be Lozada’ed, but it helps the client and the attorney will not be disciplined. Look at those numbers!!!! So, in light of W-Y-C- & H-O-B-, be prepared to file a Motion to Reopen for Ineffective Assistance of Counsel if you see that someone crafted the wrong particular social group.