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When It Really Is The Immigration Lawyer's Fault v. Rethinking "Ineffective Assistance" Of Immigration Counsel

by Jose Latour

When it Really is the Immigration Lawyer's Fault

Over the course of the past two decades of legal practice, I've observed a trend which, frankly, reflects poorly on my profession as an immigration attorney. First, as a consular officer in Mexico, I was astounded almost daily at both the regularity of fundamental legal mistakes made by counsel for visa applicants and by their consistently adverserial responses when called on said mistakes. (As the old saying goes, you can attract a lot more flies with honey than with vinegar, but attorney case inquiries directed at the consulate were, a majority of the time, pretty hostile.)

It was not surprising, then, during the early years of private practice in Miami (1991-1993), to find that a significant portion of my clients were coming to me after they had already hired another immigration attorney, "notario", or other individual...who had failed in his or her mission. By the time I'd settled into Miami Beach and my practice was very busy, I decided to informally track the number of new clients who had already hired another immigration attorney for the same matter, and things had not worked out. By 2000, that figure was about 40%...4 out of 10 new clients were coming to our firm after having lost their money with a prior attorney or "notario" who failed to obtain the approval for which they had paid.

Back then, symptoms of these inefficiencies were most visable through the dual demons: unlicensed practice of law and the even more insidious abuse of appellate processes. The former, of course, was and continues to be targeted by the Florida Bar. The latter worked (and still works) like this:

  • the attorney takes on a case which is either patently unapprovable or, more often than not, outside the scope of his or her expertise.
  • with a cavalier "I can't guarantee ANYTHING" (and we can't) attitude, the case gets filed and promptly denied SO...
  • the client is told to fork over thousands more for an appeal which, while almost certainly doomed, will take months or even years to work its way through the system.

Obviously, it is impossible for attorneys to only accept "easy" cases; but an ethical obligation exists to explain to the client the true risks of a particular filing so said client can make an educated decision. Like the old Sym's ad used to say, "an educated consumer is our best customer"...and best client.

So where are we today on this issue? Don't even ask. I've kept track of this since returning to South Florida in the spring of this year and found that 80% -8 out of 10 - inquiries I've gotten have been previously either defrauded or incompetently represented.

Rethinking "Ineffective Assistance" of Immigration Counsel

How is this incompetence being viewed and handled by ICE and USCIS?

First some background: in my years as visa officer, I had the opportunity to serve as Fraud Officer for the Stateside Criteria program in Ciudad Juarez, Mexico. The program, long since terminated, permitted aliens who were marrying US citizens but were ineligible to adjust status to travel to border posts in Mexico and Canada for the adjudication. The rationale was that it was too expensive for a Filipino, for example, to fly home, and this would be cheaper. Well, getting to Juarez has never been cheap and there was a far more compelling ulterior motive: since the Mexicans didn't want third country nationals stuck in Mexico after a visa denial at the U.S. Consulate in Ciudad Juarez, a policy was established at the border to permit Stateside applicants who had been denied their immigrant visa to be paroled back into the U.S. So no matter how fraudulent the marriage, they got back in.

I raise the example of Stateside Criteria because the statistics were similar: when I was Fraud Officer in Mexico, some 80% - four out of five - marriage cases via Stateside Criteria were fraudulent. Some had been shanghaid by a notario; the vast majority were committing deliberate fraud. So that begs the question: how many of these 80% of clients who've been ripped off were really ripped off...and how many were like the Stateside folks, simply trying to hustle a way into America which they knew to be fraudulent?

Look, I've seen WAY too many intelligent Latin Americans from considerably stable countries who applied for political asylum when they HAD to know they didn't stand a chance...but wanted an EAD - employment authorization. After you've heard a few hundred educated professionals sing their version of Shaggy's "It Wasn't Me", it is difficult to buy into the whole "victim" deal. They sound more like co-conspirators, frankly. Regardless, it is my job to disentangle the tangled web and that's what I do. But does that mean that 80% of the clients I'm seeing these days are partially responsible for their bad experiences with prior counsel? The answer is "no". The overwhelming majority have simply been given poor legal advice and, more often than not, are in trouble because their attorney simply didn't know enough about immigration law, period. For whatever reason, the Shaggy's have faded away and what I am seeing instead are solid NIV applicants with great cases in deep trouble because of bad lawyering.

As a former adjudicating visa officer, I had to exercise a blend of compassion and pragmatism to insure that the decisions I made were just...and it was never easy. I believe that this is precisely what U.S.immigration adjudicators still must do today. In the "old days" of INS, I filed dozens of Motions to Reconsider predicated on ineffective assistance of counsel, and when the officer in charge understood that the applicant was truly a victim of bad lawyering , we would invariably be given an opportunity to correct the problem...we would be allowed to lead the client to a just result given the circumstances.

Apparently, however, the barrage of immigration "dabblers" - attorneys who claim to be immigration attorneys but are essentially dabbling in what is one of the most intricate substantive areas of law -- has used up this federal goodwill, and USCIS has now more or less taken the position that even if it was the attorney's fault, too bad. Recently, the USCIS refused to permit rectification of a clear botch job by an attorney, even though it would have been an easy fix. I was nicely told that they were sorry but reopening the matter was prohibited by policy. Instead, the client now has to spend months and a small fortune to correct the lawyer's mistake.

The federal government needs to take fresh look at the issue of immigration attorney/notario incompetence including a reexamination at the level of adjudications. Justice unfolds only when the USCIS treats each applicant as an individual, property sanctions those who participate in fraud, and grant reconsideration to those who have been victimized by incompetent representation. There is simply no justice in punishing someone for another's sins.

About The Author

Jose Latour obtained his Bachelor of Science in Advertising from the College of Journalism and Communications and received his Juris Doctor degree from the University of Florida College of Law. He served as a U.S. Diplomatic and Consular Officer in Mexico, Equatorial Guinea, and West Africa. He began his private law practice in the U.S. in 1990, focusing on business immigration and workforce compliance. He is currently the Chief Compliance Counsel for i9 Advantage, an Ohio-based service provider of workforce compliance products and services.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.