Sunday, March 02, 2008

Patel (not precedential): Near-fatalistic View Of Effort To Hear Lozada Claim

In Patel v. Mukasey, No. 06-3893 (3d Cir. Feb. 11, 2008) (not precedential), the Third Circuit took what might be considered a near-fatalistic view of an attempt to allow someone's claim of ineffective counsel to be heard.

There is some debate about whether the standard set out in Matter of Lozada is the proper standard for someone trying to reopen a case due to ineffective assistance of counsel. Assuming for the moment that those requirements are the proper standard, one requirement to research and file a disciplinary complaint may be particularly harsh for immigrants who do not understand the legal system, have inflexible deadlines to pursue their appeal, and where there is no guide or assistance offered by the immigration courts to help people research how to file disciplinary complaints. The courts do not offer any guides on filing disciplinary complaints and there is no national hotline or clearinghouse for disciplinary complaints. Many people prepare disciplinary complaints by attempting to research where the lawyer in question is a practicing lawyer, then reviewing the way to file complaints in that state, then to review the ethical rules to find out whether a rule was allegedly broken, then trying to get the client to write something in English to support the complaint. Not an easy process, especially if you have a briefing deadline looming.

Strangely, the Third Circuit said that if it accepted how new counsel working with an immigrant who does not speak English had no time to file a well-researched disciplinary complaint while a briefing deadline was looming, the requirement to file a complaint "would be rendered a nullity." That comment seems near-fatalistic of the Third Circuit, considering briefing deadlines might be merely a few weeks as opposed to the three months to file a motion to reopen, even exercising due diligence.

The Third Circuit also rejected once again the state-created danger doctrine, an issue that is the subject of additional appeals.


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