In yet another blow to the rights of foreign nationals, the Board of Immigration Appeals (BIA) recently denied a motion to reopen a case where the attorney representing the foreign national admitted to committing legal error and acknowledged that he was ineffective in removal proceedings. The BIA held “acceptance of responsibility of error” was insufficient for following the legal requirements of a motion to reopen based on ineffectiveness. The case also established precedent that foreign nationals must show “a reasonable probability that, but for counsel’s error, [they] would have prevailed in [their] claim.” This precedent-setting decision narrows the legal options of many foreign nationals harmed by their attorney’s legal mistakes in immigration court.
This case involved an unusual set of facts where the attorney was making the allegations of ineffectiveness against himself but obviously did not file a bar complaint against himself, nor had anyone else. While filing a bar complaint is usually the norm in motions to reopen deportation proceedings based on ineffectiveness, established case law did not require it. Even the BIA previously held that filing a bar complaint against the infringing counsel is not always needed. (The BIA previously reasoned, however, that filing the complaint serves an important purpose in many cases and “protects against possible collusion between counsel and alien client.”)
While admittedly a poor strategy for the attorney to file the motion based on allegations of his own ineffectiveness, and certainly a conflict of interest, the attorneys’ motion did substantially comply with the procedural requirements. By establishing a precedent that acceptance of responsibility of error by the infringing attorney is insufficient compliance with the requirements for a motion to reopen, the court, in effect, discourages attorneys to come forward to admit their mistakes in order to serve the best interests of their clients
Under the new precedent, the fear of a bar complaint will make many attorneys less willing to admit their mistakes when they receive allegations of error. Likewise, attorneys representing foreign nationals seeking to reopen their cases may be discouraged to provide legal assistance, fearing that the only way to comply with the filing requirements would be to file bar complaints against their peers, even when they acknowledge their mistakes.
A narrower decision that prohibits attorneys from filing motions to reopen based on their own ineffectiveness would have been more-forward thinking. In fact, an acknowledgement of legal error where the conduct was not egregious should be sufficient reason for not filing a bar complaint against attorney. Moreover, courts can prevent collusion by reading the allegations themselves and deciding if the matter should be referred to the immigration court’s own attorney discipline program. Admitting legal error is significant for any attorney. Even when a bar complaint is not filed, attorneys are not absolved from other negative consequences of acknowledging their mistake (such as exposure to civil malpractice lawsuits and harm to reputation). Therefore, the reasoning behind the BIA’s decision is flawed and harms the foreign national.