My immigration attorney failed to appeal when i was ordered a removal by IJ. I did have legal grounds to appeal. My attorney's failure happened due to mistakes of his staff working in his office. I paid him and he refunded me. In addition he filed motion to reopen with untrue statements. I already submitted my complain to State bar. Now my case is pending in with Immigration Judge ( I am working with different attorney). Should i file legal malpractice lawsuit now or after my case is resolved. I am worried if there is a statue of limitation to bring legal malpractice lawsuit. If he filed appeal on time i would've adjust my status already because i am married to US Citizen.
Talk to a legal malpractice to see if it should be done now or later. The statute of limitations for legal malpractice is here: California Code of Civil Procedure Section 340.6.
(a) An action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance of
professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence
should have discovered, the facts constituting the wrongful act or
omission, or four years from the date of the wrongful act or
omission, whichever occurs first. If the plaintiff is required to
establish his or her factual innocence for an underlying criminal
charge as an element of his or her claim, the action shall be
commenced within two years after the plaintiff achieves
postconviction exoneration in the form of a final judicial
disposition of the criminal case. Except for a claim for which the
plaintiff is required to establish his or her factual innocence, in
no event shall the time for commencement of legal action exceed four
years except that the period shall be tolled during the time that any
of the following exist:
(1) The plaintiff has not sustained actual injury.
(2) The attorney continues to represent the plaintiff regarding
the specific subject matter in which the alleged wrongful act or
(3) The attorney willfully conceals the facts constituting the
wrongful act or omission when such facts are known to the attorney,
except that this subdivision shall toll only the four-year
(4) The plaintiff is under a legal or physical disability which
restricts the plaintiff's ability to commence legal action.
(b) In an action based upon an instrument in writing, the
effective date of which depends upon some act or event of the future,
the period of limitations provided for by this section shall
commence to run upon the occurrence of that act or event.
Talk to a malpractice attorney in your area. That type of case is difficult to prove. An attorney may not want to move on your case until the outcome of your appeal. Good luck.
I agree with my colleagues. You have to be certain of a colorable claim againt your former attorney. Remember, ask yourself, why were you in removal proceedings inthe first place. If the allegations against you were of a sufficient nature to preclude you from adjusting your status ( or even becoming a permanent resident) in any event then you have no case against this attorney, perhaps for lost time in the Country while fighting removal. This is what is know as the "Case within the Case". Your maplpractice attorney is going to have to show that you would have absolutely adjusted status but for the lawyer's alleged negligence. Be careful, some states have civil actions for bringing frivolous malpractice claims.
You cannot say: "If he filed appeal on time....U.S. Citizen." The immigration judge ordered you removed. Just because you are married to a U.S. Citizen doesn't mean you can adjust status. You may have inadmissibility bars. Speak to a malpractice attorney and retain a competent, experienced immigration attorney who can work in tandem on your case.
You could potentially file a legal malpractice claim at any point and you should be aware of the statute of limitations/deadline to file. Consult with an attorney specializing malpractice matters.
Please note that this posting does not constitute legal advice or create any attorney-client relationship with the inquirer. Avvo is a useful forum to obtain general information on legal issues, but is not a substitute for direct, confidential consultation with an attorney in any legal matter.
Legal malpractice case is when you have a meritorious claim and that was lost due to the negligence of your lawyer.
You must discuss this with your lawyer if a Motion to re-open is available that will give you chance to adjust,if you were otherwise eligible to adjust. Why did you think about adjustment after the removal order? May be your married afterwards thinking that you can adjust after the fact?
Malpractice is easy said than done since a "case within a case" standard applies to malpractice cases.
Your lawyer might have failed to file the appeal and unless you can prove an affirmative harm within the ":case within a case" standard there is no malpractice. Good Luck
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