Last month, a panel of judges on the Ninth Circuit Court of Appeals made an important ruling that may open a new era of claims for benefits under the Immigration and Nationality Act, as amended (the “INA”), under a theory related to ineffective assistance of counsel.
The INA declares certain categories of non-citizens ineligible to become lawful permanent residents, including anyone who has failed to maintain lawful immigration status continuously since entering the United States. However, the INA contains a parenthetical that states “(other than through no fault of his own or for technical reasons)” as an exception to this rule.
In Peters v. Barr, the panel reviewed a case where an immigration attorney failed to timely file an extension of status application, despite assuring the client that he had done so. The client, Ms. Peters, argued that her failure to maintain lawful immigration status occurred through no fault of her own. An Immigration Judge did not agree with Ms. Peters, nor did the Board of Immigration Appeals. Ms. Peters’ then petitioned for review of the BIA’s decision in the Ninth Circuit Court of Appeals.
The appellate court panel analyzed 8 U.S.C. § 1255(c)(2) and found:
[T]he pairing of “fault” with the phrase “of his own” makes evident that Congress intended the parenthetical exception to apply when an applicant is not personally to blame for her failure to maintain lawful status. That policy choice strikes us as eminently sensible given the complexity of the laws governing maintenance of lawful immigration status and the ease with which an individual who is diligently trying to maintain such status can inadvertently fail to do so.
An applicant cannot be regarded as personally responsible for failing to maintain lawful status when that failure occurs due to a mistake on her lawyer’s part. An applicant who relies on the assistance of counsel to maintain lawful status will usually have no basis to question the soundness of the advice she receives from her lawyer.
The panel thus ruled that the phrase “through no fault of his own” “encompasses circumstances in which an applicant’s failure to maintain lawful status results from her reasonable reliance on the erroneous advice of counsel.”
This ruling may turn ineffective assistance of counsel from a shield to a sword for persons filing for adjustment of status. While certain employment adjustments allow a foreign national applicant to be out of status for 180 days under Section 245(k) of the INA, many other adjustment categories do not provide any grace period. It now appears possible that an applicant who can show the failure to maintain status occurred due to a mistake on her lawyer’s part, may be eligible to apply to adjust.
The BIA issued its seminal decision on ineffective assistance of counsel in Matter of Lozada in 1988, indicating that relief due to ineffective assistance of counsel was only available as a deference to deportation/removal, requiring a non-citizen to show he was prevented from reasonably presenting his case and was prejudiced by his representative’s performance. It is not clear whether USCIS will follow this published opinion.
Now, it appears the Ninth Circuit has determined that it can be the basis for applying for affirmative benefits, such as adjustment of status.
If you have been subject to ineffective immigration counsel or have questions, please contact a WR attorney.
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