Visa Lawyer Blog
So you hire a lawyer to file your immigration petition and your case gets a Request for Evidence on it. You provide all of the documentation in the request to your lawyer to file with immigration so that your case will be approved, relying on your lawyer’s advice for what documents you need to provide so it will be successful. Unfortunately, your case is denied, but the denial says that immigration never received your Request for Evidence and denied it for failure to respond to it. As a client, this can be both disheartening and confusing since you relied on your lawyer to help get your case approved. What can you do?
Our office had a client come to us with this very situation at hand, wondering what they could do to get their case approved. The consequences would be pretty severe because it was a family petition and the denial could potentially split up a family that recently had a new member born. Understanding the sensitivity of the circumstances, there were a few things we could do while the period of time to file an appeal was open.
The first thing we did was follow up with the Immigration Field Office who had the case on file and issued the denial to see if the case could be reopened on their own motion. For anyone that is unfamiliar with dealing with the Immigration Field Offices, one must generally have an appointment made with them to discuss the case. When faced with a denial of a case, that timeline is more sensitive since the time is limited to file an appeal with USCIS. We were fortunate enough to bring this case to the attention of a supervisor to address our matter, and she provided us the opportunity to bring her the documents on the case. Despite these efforts, we did not hear back from the Immigration Field Office soon enough so that we would not have to file a Motion to Reopen the case. When faced with this whether to file a Motion to Reopen or not, the safest thing to do is to proceed with filing the motion to ensure that right has been probably submitted for the case.
When considering a Motion to Reopen, one can allege reopening the case on procedural grounds, on grounds where the law was inappropriately applied, or on facts that are part of the record but were not considered sufficiently enough to get the case approved. In these circumstances, there were procedural grounds for having this case reopened.
When we talked to our client about the case and how it was handled, we had contacted the former attorney on the case to determine if the Request for Evidence had been filed on time so we could file our motion alleging the procedural grounds that immigration failed to consider the evidence presented on the case. Based on our communications with the former lawyer, it appeared to us that this lawyer may not have filed the response on time, and that it was his fault that the case was denied. This gave us a second ground to request the case be reopened. Our motion alleged that the former attorney provided ineffective assistance of counsel on this case and due to his failure to carry out his duties, that the case should be reopened and then approved based on the evidence presented.
To allege ineffective assistance of counsel, a three part test must be met in order to make a successful assertion in the motion. The first part of the test is to provide an affidavit from the client detailing the agreement that was entered into with the lawyer, the actions that were to be taken during the representation, what the lawyer did for his representation, and what the lawyer failed to do. The second part of the test is to show that the lawyer had an opportunity to respond to the allegations that he failed to carry out his duties, as outlined in the representation that was agreed to. The last part is to show whether the client has filed a complaint with the appropriate disciplinary authorities, and if not, why it has not happened yet.
In our case, we had our client provide us the documents to show the agreement that was entered into, documents to show communications between them and the former lawyer after the case was denied to see if he had failed to carry out his duties and what could be done about their case, and then, based on the short timeline of filing a motion to reopen on the case, explain how no complaint had been filed with the State Bar until alternative forms of relief had been exhausted. Because the Motion to Reopen was the last form of relief being sought, it is permissible that a complaint would not be lodged with the State Bar until it was determined that the clients were sufficiently harmed by the former lawyer’s actions.
In the end, the case was reopened and based on the documentation that had been provided in the Request for Evidence, the case was approved. This is good news for our clients because it gives them the opportunity to move forward with the process so they will not be split up in this process. The lesson learned from this situation is that even if a case is denied by immigration, there are different ways to proceed in getting that decision overturned so the case is approved. Our office has been successful in getting prior denials overturned and can help get your case overturned if you are faced with a similar situation and we would be happy to help you win your case.