Ineffective Assistance of Counsel
The Board of Immigration Appeals ("BIA") has determined the criteria for ineffective assistance of counsel in Matter of Lozada, 19 I&N Dec.637 (BIA 1988) [where ineffective assistance of counsel claims raised must:
(1) Have motion supported by affidavit setting forth agreement and representations by counsel;
(2) Inform counsel against whom the claim is made and give counsel opportunity to respond;
(3) Reflect in the motion whether a bar charge has been filed and if not, why not?
A motion to reopen premised on ineffective assistance of counsel must comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),3 and establish that "counsel's performance was so ineffective as to have impinged upon the fundamental fairness of the hearing," Jian Yun Zheng v. U.S. Dep't of Justice, 409 F.3d 43, 46 (2d Cir. 2005) (quoting Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 241 (2d Cir. 1992)). To show fundamental unfairness, the applicant must allege sufficient facts to show that competent counsel would have acted otherwise and that the applicant was prejudiced by his counsel's performance. Romero V. INS, 399 F.3d 109, 112 (2d Cir. 2005).
Generally there is a 90 day time limit for filing motions to reopen due to ineffective assistance of counsel, however, the court will toll such a deadline and the tolling will continue until the date the alien learns of the ineffective assistance as long as the alien exercises due diligence. Cekic v. INS, 435 F.3d 167 (2d Cir. 2006).
Lack of Notice
In absentia order may be rescinded only if:
1) a motion to reopen is filed within 180 days of the date of the order and the person demonstrates there were exceptional circumstances; or
2) a motion to reopen is filed at any time and the person can demonstrate that failure to appear was due to lack of proper notice in accordance with INA section 239 or that he/she was in state or federal custody and the failure to appear was through no fault of his her own.
Exceptional circumstances are defined as circumstances "beyond the control of the alien" such as battery or extreme cruelty to the alien or any child or parent of the alien..." (See INA240 (e)).
A respondent can move to reopen a hearing on a showing of reasonable cause for their absences. Matter of Haim, 19 I&N Dec. 641 (BIA 1988). In order to reopen, the respondent need not demonstrate a prima facie case for relief nor exceptional circumstances for failure to appear. A showing of reasonable cause is sufficient. Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989); Matter of Haim, supra. Also a respondent is not required to show prejudice in order to rescind an order of deportation entered in absentia. Matter of Grijalva, 21 I&N Dec. 472, 473 n.2 (BIA 1996).