Legal Malpractice Suspected in Alien Deportation

This case involves alleged legal malpractice by an attorney representing an alien during a removal proceeding. The plaintiff, a forty-three-year-old male, was an alien without a visa and the Department of Homeland Security initiated removal proceedings against him. The plaintiff was married to a US citizen and filed an I-130 petition with US Citizen and Immigration Service to be reclassified as a lawful, permanent resident (because of marriage). The plaintiff requested that the removal proceedings be postponed (through a continuance) until the I-130 petition went through. The immigration judge, however, stated that he did not have jurisdiction to hear the case, and instructed the plaintiff to seek relief with the USCIS. In the judge’s written opinion, he mentioned the lack of jurisdiction but did not mention the refusal to issue a continuance (to allow the plaintiff to await the result of the I-130 petition). The plaintiff’s attorney in the immigration proceedings (and the defendant in the legal malpractice suit) was to file a notice of appeal with the Board of Immigration Appeals but filed it three weeks after it was due. The BIA refused to hear the case and affirmed the immigration judge’s decision. The plaintiff then filed an appeal in the 4th Circuit Court of Appeals but was unable to raise the issue of his continuance because the issue was not raised on appeal. Subsequently, the plaintiff was deported. After deportation, the I-130 petition was granted.

Question(s) For Expert Witness

1. But for the defendant's attorney's late brief with the Board of Immigration Appeals, would the plaintiff have been successful in her appeal?

Expert Witness Response E-006346

One of the major issues in this case, aside from the causation element, is the result of the late filing. Based on the facts, the plaintiff was unable to discuss the denial of the continuance in the Circuit Court of Appeals because the issue was not presented on appeal (and was not discussed in the immigration judge's opinion). If the attorney had filed the appeal in a timely fashion, however, the issue would have been properly considered during the initial appeal. Thus, the Circuit Court of Appeals would have been able to discuss it as well. Because the immigration judge chose not to discuss it, the Circuit Court could not consider it. Also, because the I-190 petition would have been granted for the plaintiff, then it is reasonable to assume that the attorney's error altered the plaintiff's outcome. If he had been granted the continuance, he would have successfully received citizenship through marriage. I would need to read the specifics of the case, but it appears that this is a malpractice case.