A denial for asylum in Immigration Court is not final. Applicants may win an appeal of their decision at the Board of Immigration Appeals if there has been ineffective assistance by a prior lawyer.
To be successful in filing an appeal based on ineffective assistance of counsel, applicants must comply with the requirements set out in Matter of Lozada. Asylum applicants must 1) present a motion supported by the contract agreed to with prior attorney 2) inform prior attorney of intent to file claim and give attorney opportunity to respond and 3) indicate whether a charge has been filed with the bar association regulating attorneys in that state.
What is Ineffective Assistance?
A denial of a case does not give rise, in and of itself, to a valid claim for ineffective assistance of counsel. Importantly, applicants must show that the prior attorney's actions prohibited them from being able to reasonably present their case. Further, applicants must also show that they were prejudiced by the attorney's actions.
Failure to file asylum applications within one year of an applicants' last arrival in the United States, failure to file within a reasonable time after changed circumstances, and (sometimes) admitting that criminal convictions made their clients removable from the United States have been found to be instances where an attorney has provided ineffective assistance to their client.
Hiring an Experienced Attorney
The denial of an asylum case is not the end of the road, but it does make the road longer. Asylum applicants should hire an experienced attorney who will provide a second opinion. Although the author is a Board-certified immigration expert, this guide is intended as general information and not specific legal advice. This communication does not create an attorney-client relationship. Schedule a consultation with an attorney to address individual concerns.
Additional resources provided by the author
The author blogs regularly on asylum and is a founder of a non-profit organization that gives scholarships to asylees. See the links below.
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