Published on:

ARDC Files Complaint Against Immigration Lawyer

The case is captioned In the Matter of Scott I. Yu, No. 2016PR00104. Immigration malpractice is troubling for courts because Illinois does not allow a plaintiff to recover non-economic damages. Also, often the plaintiff has been deported so may be unable to prosecute a malpractice case. In this instance, the ARDC has charged a lawyer with the failure to provide competent representation where, in three separate cases, he failed to timely file appeals of adverse immigration orders. As a result, the Court of Appeals lacked jurisdiction over the matters and could not hear the cases. Apparently, after the Board of Immigration Appeals denied the client’s application, Yu filed a motion to reconsider which does not toll the time period for an appeal. When that motion to reconsider was denied, Yu tried to file an appeal, but the appeal was untimely.

The allegations in one of the counts of the complaint are provided here:

14. In February 2013, Jose Arriaga-Hernandez, a citizen of Mexico residing in the United States, sought relief from removal from the United States by filing an application for cancellation of removal in U.S. Immigration Court, case number A200-838-740.

15. On April 25, 2013, an immigration judge denied Arriaga-Hernandez’s application in case number A200-838-740, and entered an order removing Arriaga-Hernandez to Mexico.

16. On or before May 20, 2013, Respondent and Arriaga-Hernandez agreed that Respondent would represent Arriaga-Hernandez in his immigration matter. On May 23, 2013, Respondent entered his appearance for Arriaga-Hernandez in case number A200-838-740. On that same day, Respondent also filed a notice of appeal to the BIA.

17. On February 28, 2014, the BIA entered an order denying Arriaga-Hernandez’s appeal.

18. Pursuant to 8 U.S.C. § 1252(b)(1), Respondent had 30 days from the BIA’s order to file with the United States Court of Appeals for the Seventh Circuit a petition for review of the immigration court’s removal order, which, in Arriaga-Hernandez’s case, would have been on or before March 30, 2014.

19. Respondent did not file a petition for review of the immigration court’s removal order within 30 days after the BIA’s February 28, 2014, order denying Arriaga-Hernandez’s appeal. Respondent’s failure to do so deprived the Court of Appeals of jurisdiction to consider the merits of the denial of Arriaga-Hernandez application for cancellation of removal. Instead, on March 27, 2014, Respondent filed a motion with the BIA for it to reconsider its denial of Arriaga-Hernandez’s appeal, pursuant to 8 C.F.R. 1003.2(b)(1). Respondent’s act of filing of a motion to reconsider did not toll the 30-day deadline to file a petition for review of the immigration court’s removal order.

20. Arriaga-Hernandez paid Respondent $2,000 in legal fees and costs for Respondent to file and litigate the motion to reconsider referenced in paragraph 19, above.

21. Pursuant to 8 C.F.R. 1003.2(b)(1), a motion to reconsider must specify errors of fact or law in the prior BIA decision. Respondent’s March 31, 2014, motion to reconsider failed to identify an error of fact or law in the BIA’s dismissal of Arriaga-Hernandez’s appeal; rather, Respondent’s motion to reconsider asserted only that the BIA failed to consider the totality of the evidence.

22. As a result, Respondent filed the motion to reconsider without a basis in law and fact for doing so that was not frivolous.

23. At no time on or prior to March 31, 2014, did Respondent communicate to Arriaga-Hernandez the benefits and consequences of failing to file a petition for review within thirty days of the immigration court’s removal order – including that failing to do so would deprive the Court of Appeals of jurisdiction to consider the merits of the denial of Arriaga-Hernandez application for cancellation of removal – and instead filing a motion with the BIA for it to reconsider its denial of Arriaga-Hernandez’s appeal.

24. At no time on or prior to March 31, 2014, did Respondent communicate to Arriaga-Hernandez adequate information and explanation about the material risks of and reasonably available alternatives to filing a motion with the BIA for it to reconsider its denial of Arriaga-Hernandez’s appeal, and not filing a petition for review within thirty days of the immigration court’s removal order.

25. On June 17, 2014, the BIA entered an order denying Arriaga-Hernandez’s motion to reconsider.

26. On July 16, 2014, Respondent filed a petition for review in the United States Court of Appeals for the Seventh Circuit, seeking review of BIA’s June 17, 2014, order denying Arriaga-Hernandez’s motion to reconsider. Because the petition for review was filed more than thirty days after the BIA’s February 28, 2014, order denying Arriaga-Hernandez’s appeal, the Court of Appeals’ jurisdiction was limited to a review of the denial of Arriaga-Hernandez’s motion to reconsider, and not the underlying denial of Arriaga-Hernandez’s application for cancellation of removal.

27. On November 6, 2014, Respondent filed a brief in support of the petition for review he filed on Arriaga-Hernandez’s behalf. As a result of the Court of Appeals’ July 28, 2014, opinion in Tian, Respondent knew that the Court of Appeals’ jurisdiction was limited to a review of the denial of Arriaga-Hernandez’s motion to reconsider, and not the underlying denial of his application for cancellation of removal. However, Respondent’s brief consisted entirely of argument against the underlying denial of Arriaga-Hernandez’s application for cancellation of removal, which the Court of Appeals did not have jurisdiction to review. Respondent’s brief contained no argument as to how or why the Court of Appeals would have jurisdiction to review the underlying denial of Arriaga-Hernandez’s application for cancellation of removal. Respondent’s brief also contained no argument that Arriaga-Hernandez’s motion to reconsider was improperly denied.

28. As a result, Respondent filed the petition for review and supporting brief without a basis in law and fact for doing so that was not frivolous.

…..

The complaint includes two other counts which allege similar negligence.

Because this is a complaint, the allegations have not been proven. The case is significant because it illustrates the ARDC is primarily prosecuting a negligence case against an attorney in a professional discipline proceeding. The ARDC alleges that the attorney violated Rule 1.1 (Competence), Rule 1.4(a)(1)(failing to inform the client) and Rule 1.4(a)(2)(failing to consult with the client).

Comment: this case demonstrates that the ARDC can bring a disciplinary case for mere negligence. Negligent representation violates Rule 1.1 of the Illinois Rules of Professional Conduct. In this case, the ARDC may have been motivated to charge the lawyer because it is tough for a person who has been deported to file a legal malpractice case.

Edward X. Clinton, Jr.