Some Accused Citizens Are More Equal than Others in Immigration Law

By David North on September 9, 2014

Here are two situations in which an alien is accusing someone — usually a citizen — of unattractive behavior:

In one, the alien says that his lawyer is to blame for his losing a case and that the lawyer is incompetent, lazy, sloppy, or all three.

In the other, the alien says that her (it is usually a woman) husband has abused her physically or mentally.

In both cases, if the alien wins the argument, he or she can secure a major benefit, such as legal status. If the alien wins, the citizen loses a lot, if only in terms of reputation, but sometimes much more.

Do the lawyer and/or the husband have rights in these cases? Must they be informed of the charges against them and given a chance to refute them?

Well, it depends on who is being accused.

The lawyer does have a right to respond, but the mere husband does not.

I stumbled onto this inequitable situation the other day. I wrote a blog about how USCIS treats U.S. citizen husbands of aliens (often illegal aliens) who had been accused of spousal abuse; USCIS decides these cases without even consulting the allegedly abusing spouses. If the alien wins, she becomes a green card holder.

Then, quite separately, I happened onto a 1988 decision of the Board of Immigration Appeals, Matter of Lozada, regarding aliens who want to file an appeal saying that their case should be reviewed because of "ineffective assistance of counsel". This is what the BIA ruling said of such accusations:

Furthermore, before allegations of ineffective assistance of former counsel are presented to the Board, former counsel must be informed of the allegations and allowed the opportunity to respond.

The USCIS director, a lawyer who succeeded another lawyer in that position, probably has not put these two different sets of accused persons into the same picture.

Director Leon Rodriguez should do so and resolve the disparity not by taking anything away from lawyers, but by expanding the rights of the accused citizens whose ex-spouses are raising the specter of abuse in order to get a green card.