Think Immigration: How the Immigration Court System Pits Immigration Lawyers Against Each Other for the “Good of Clients”

Would it surprise you to learn that unlike any other type of attorney, immigration attorneys are required to file a formal bar complaint in order to help a client seek to reopen a case based on ineffective representation? The bar complaint requirement was introduced in 1988 when the Board of Immigration Appeals (BIA) decided Matter of Lozada. The American Immigration Lawyers Association Ethics Committee has recommended that the bar complaint requirement under Matter of Lozada be eliminated. We feel it is unnecessary to accomplish the clients’ and courts’ goals and unduly onerous; instead, we recommend a flexible approach that recognizes the true interests of immigrants involved.

So, how would a case come to be impacted? Well, let’s say a client gets bad advice from a lawyer, or the attorney doesn’t timely file the appropriate forms or represent them well. Or let’s say, in an even more odd twist, the lawyer files everything correctly but the law later changes the requirements retroactively (because yes, immigration law changes can be applied retroactively); in such cases, clients who try to address the deficiencies would still be required to meet the Lozada requirements and file the bar complaint. Hardly seems just or fair, but it is the current state of things.

When a client talks to a new attorney and wants to try to reopen their case based on “ineffective assistance of counsel,” they run into a barrier that no other area of law has: In most federal jurisdictions, they are required to take the extra step to file a formal bar complaint against their former lawyer.

The bar complaint requirement makes it harder for noncitizens to reopen cases, because many lawyers are understandably reluctant to file a complaint over simple mistakes that don’t rise to the level of an ethics violation, in a state discipline system not always designed to address the issues. There may be instances when the client based on 20/20 hindsight believes that the prior attorney could have handled the case differently. If the immigrant/client is able to find an attorney willing to file the complaint, it of course costs time and money to do so, adding to the cost of the successor representation.

In criminal law, where ineffective assistance of counsel is often pursued, there is no requirement to file a bar complaint per the Supreme Court decision in Strickland v. Washington. The ethics committee believes Strickland should be applied to immigration cases as well. Indeed, it had been prior to Lozada and its abandonment after Lozada has proven to be prejudicial and punitive, causing unintended consequences which have resulted in hostility in the bar and barriers to access to counsel.

Here’s the disconnect: Immigration judges initially said they were unable to make determinations about ineffective assistance, but they don’t wait for the outcome of the bar complaint process. They appear able to determine what is ineffective. Why, then, is it still required?

Maybe thirty years ago, the Board thought it necessary to include this requirement to ensure that disciplinary administrators were engaged. but, nowadays, it is far more likely that a seriously deficient and/or unethical lawyer will come to the attention of regulators. In the Ethics Committee’s report, we detail them:

• Improved sophistication of lawyer discipline systems and the establishment of consumer assistance programs within state bar associations, as well within the enforcement arm of a state attorney general’s office;
• The development of email, social media, and the internet, all of which enable clients to share information among themselves and others regarding misconduct of lawyers; and,
• A more sophisticated and better-staffed EOIR discipline system.

Of course, the client’s successor attorney will always have the option of pursuing a bar complaint, if they wish and believe it is truly warranted. But by removing the requirement to do so, the removal defense bar and their clients will no longer be subject to this additional burden that no other attorney faces when trying to establish ineffective representation by the prior attorney.

As one can see, the reason the AILA Ethics Committee has taken the time to report on this matter is because it is of grave importance to both clients and attorneys alike. We urge AILA members to seek amended rule-making that was initiated but never finished by the EOIR in 2020 to remove the bar complaint requirement, or in the alternative, advocate with the Attorney General to issue a decision modifying Matter of Lozada to comport with the Strickland test. AILA will be pursuing these efforts and pushing both Congress and the Biden Administration to take immediate action.