Successful Claim of Ineffective Assistance of Counsel Leads to Immigration Court Victory
Mr. Huang had a pretty good asylum claim. He came to the USA from China. In China, his wife was forced to undergo an abortion in March, 2000. Her abortion was extremely painful to both spouses. After the abortion, she became depressed and physically weak. She became epileptic. Subsequently, Mr. Huang joined a home church, an underground church, to seek spiritual comfort. Someone reported his church activities to the local government. On January 2, 2008, Mr. Huang received a summons which ordered him to report to the public security bureau, that is, the police, on January 3, 2008, for questioning.
The summons indicated that the questioning would last one hour and fifteen minutes, from 9 AM to 10:15 AM. Mr. Huang reported to the public security bureau on time. Policemen beat him up. They interrogated him. He was kept in that bureau for one week. On January 10, 2008, after his family had paid a fine of 3,000 RMB, Mr. Huang was released. Before he could be released, Mr. Huang also had to sign a guarantee letter. The letter called for him to provide information regularly about the home church. Mr. Huang did not return to the public security bureau. Instead, he went into hiding and eventually left China. After he left China, the police went to his home several times to look for him. One time, the threats by the police provoked a seizure in his wife, for which she was hospitalized for a week.
Mr. Huang entered the United States on April 18, 2008. Thanks to a relative, he quickly found work in Arizona. He met with an attorney there who is a native Mandarin speaker. She told him that he was eligible for asylum. Mr. Huang hired that attorney, “Ms. Y,” to take care of his immigration case. Although Ms. Y did not provide her new client with a contract to sign, she agreed that she would handle his case from the beginning to the end, including her advising him on what documentation she will need, preparing him for the asylum interview, submitting all necessary documentation to the Court, and attending all Immigration Court hearings, in Phoenix, with him, including the final hearing. Ms Y set the total legal fees at $5,500.00. With the help of relatives and friends, Mr. Huang paid her $3,000 when he hired her. He paid Ms. Y the other $2,500 on May 20, 2009. Each time he made a payment, he received a receipt. Mr. Huang filed his asylum application within one year of his arrival in the USA.
Mr. Huang believed that he had given Ms. Y everything that she needed. After being interviewed at the nearby Asylum Office, he case was referred to the Immigration Court. Mr. Huang reasonably believed that it was Ms. Y’s job to present a winnable case to the Immigration Judge. But Ms. Y made mistakes. Because of her mistakes, Mr. Huang not only failed to achieve a victory, but led to the Immigration Judge’s conclusion that Mr. Huang had not been a credible witness. Mr. Huang had to appeal to the Board of Immigration Appeals (BIA). Ms. Y took care of his appeal. While the appeal was pending, Mr. Huang moved to New York City.
Mr. Huang lost the appeal. That’s when he came to see me. With the help of an interpreter, Mr. Huang and I discussed his situation at length. He decided to hire me for the preparation and filing of a Matter of Lozada motion to reopen, which asserts ineffective assistance of counsel.
First, Mr. Huang filed a Bar Complaint against Ms. Y. With her response to the Complaint, she dug a deeper hole for herself. Trying to shift the blame to one’s (former) client is just not the right thing to do. Mr. Huang and I then filed the Lozada motion with the BIA, and, of course, sent a copy of it to the Office of the DHS attorneys in Phoenix. Three days later, I received a telephone call from a DHS attorney in Phoenix. She said that the DHS will not oppose our motion. She filed her nonopposition papers with the BIA the same day. Two months later, the BIA granted the motion, reopened Mr. Huang’s case, and sent it back to the Immigration court in Phoenix. I immediately filed a motion for a change of venue to New York City, which was granted.
After one Master Calendar Hearing in New York City, the Immigration Court scheduled Mr. Huang for a final hearing on his asylum claim. That hearing went well. All of Mr. Huang’s documentation was received into evidence, and he answered all of the questions well. The Immigration Judge granted him asylum. The DHS did not appeal. Mr. Huang’s wife has since immigrated to the United States and, at the present time, each spouse has an application for permanent resident status that is pending before the U.S. Citizenship & Immigration Services.
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