Friday, June 15, 2007

Fadiga: Only Need To Show Reasonable Probability that Ineffective Assistance of Counsel Hurt Case

In Fadiga v. Gonzales, No. 05-4910 (3d Cir. June 15, 2007), the Third Circuit made an important ruling to make it easier for immigrants who suffered from ineffective assistance of their prior counsel to reopen their cases and get a fair hearing.

If someone in an immigration court case does not get competent representation from the lawyer he hired, it may violate the guarantee of due process in the Constitution's Fifth Amendment if the incompetence made the proceedings fundamentally unfair.

The first important ruling by the Third Circuit was rejecting the BIA's strict, formulaic insistence on three requirements it set forth in Matter of Lozada. The third requirement is that the immigrant must either file a disciplinary complaint against the former lawyer or explain why he did not file it. The Third Circuit rejected the BIA's formulaic insistence on that requirement [Correction: the BIA did not perform its usual formulaic insistence on that requirement, see below] -- in this case, the former lawyer admitted under oath that he did a terrible job. The purpose of requiring a disciplinary complaint is almost completely satisfied when the former lawyer admits he did a bad job.

The second important ruling by the Third Circuit was rejecting the BIA's harsh requirement that to reopen a case, the immigrant must show that he would prevail in a new hearing. It is extremely difficult to prove you have more than a 50% chance of prevailing when a competent lawyer would be helping you to develop the record and elaborate on the evidence. Far from being required to show it was more likely than not to succeed, all that is required is to show that there is a reasonable likelihood that the result would have been different. This is the same standard that the Second Circuit has adopted.

The BIA made a fatal error by requiring Mr. Fadiga to prove he likely would have won his case if he only had competent counsel. All he needs to show is a reasonable likelihood that the result would have been different.

The Third Circuit then further criticized the BIA by noting that the Ninth Circuit addressed the same type of error by the BIA in 2004. This suggests that the BIA makes repeated mistakes on this issue and has not been learning from its errors. It is unfortunate that at the same time the Third Circuit is pointing out the BIA's repeated errors, some in Congress are suggesting there should be less judicial review of the BIA's decisions. Perhaps showing a lack of confidence in the BIA, the Third Circuit said it was clear that Mr. Fadiga's case should be reopened because there was at least a reasonable likelihood the errors ruined his case. The errors were how a law student prepared the written asylum claim and the lawyer did not review the written claim with Mr. Fadiga, so it contained numerous factual errors that made Mr. Fadiga seem not credible to the immigration judge. It's always important to prepare your written documents carefully and then to review them again with your client.

[Correction: thank you to someone who posted a comment -- as noted, the original post had a mistake by stating that the Third Circuit rejected the BIA's supposed formulaic requirement of filing a bar complaint. Actually, the Third Circuit noted that the BIA said due to supposedly not demonstrating prejudice, the BIA did not care whether the immigrant satisfied the formulaic requirements. In oral argument, the government lawyer pushed for the formulaic requirements, but it was the government lawyer on appeal not the BIA. Sorry for the mistake and thanks for the correction! Surprising that the BIA did not make its classic formulaic error in this particular case.]


Anonymous Anonymous said...

As someone who followed this case closely, I wanted to clarify one thing in your otherwise apt summary. You said that "[t]he Third Circuit rejected the BIA's formulaic insistence on [the Lozada's 'bar complaint'] requirement." Actually, the BIA didn't reach that issue, but its decision implied that it would have waived the bar complaint requirement because Fadiga's lawyer had filed a thorough affidavit explaining the problems with the representation.

It was the government, in its filings on appeal, which insisted on a "formulaic" application of Lozada, and it was this position that the court rejected. Although your other criticisms of the BIA may be well-taken, the Board does seem to have conducted a proper Lozada analysis in this case.

2:01 PM  

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