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The 2d U.S. Circuit Court of Appeals said that “a lawyer’s inaccurate advice to his client concerning an immigration hearing date can constitute ‘exceptional circumstances’ excusing the alien’s failure to appear at a deportation hearing.” Aris v. Mukasey, No. 07-1211. Detailing the plight of Garfield Livern St. Valentine Aris, who was represented by a string of bad lawyers, Judge Robert Katzmann said the 2d Circuit was seeking “to establish what we would have thought self-evident: A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia . . . has provided ineffective assistance.” Aris came to the United States from Jamaica as a lawful immigrant in 1983. In 1991, he pleaded guilty to unlawful possession of cocaine and was sentenced to three years’ probation. When he later received an order to show cause saying he was subject to deportation, Aris hired David Scheinfeld of David Scheinfeld & Associates to represent him. He conceded deportability in 1994, but an immigration judge granted him permission to apply for discretionary relief from deportation, as long as he did so by the end of the day. But counsel failed to file the application. A hearing was scheduled for May 2, 1995. When the date arrived, Aris, who had heard nothing from his lawyer, phoned the law firm. A paralegal told him the firm calendar did not indicate he had a hearing scheduled. Unbeknownst to Aris, the paralegal then phoned the immigration court, learned that there was indeed a hearing scheduled and called a second time, only to learn that Aris had been ordered deported. When Aris received a letter in September 1995 saying he was going to be deported, he went back to the Scheinfeld firm and spoke with another attorney who assured him he would take care of the problem. The lawyer filed a motion to reopen the case. The motion was denied. In June 2005, 10 years after the deportation order was signed, Aris was arrested. It was only then that he learned he had been living in the United States in violation of his deportation order. Aris’ family then hired Max Antoine of the American Corporate Society and the Justice League Law Center for $10,000. Antoine, a licensed legal consultant but not an attorney, “proceeded to file a number of factually erroneous and legally flawed submissions on his behalf,” Katzmann said. Aris was detained for nine months, while his wife and stepdaughter, unable to pay their rent without the income from his two jobs, were evicted and forced to move into a homeless shelter. Aris’ family sought the advice of a group called Families for Freedom, which steered them to Cleary Gottlieb Steen & Hamilton. Cleary agreed to represent Aris pro bono. “While binding 2d Circuit precedent holds that aliens in deportation proceedings have ‘no specific right to counsel,’ the Fifth Amendment does require that such proceedings comport with due process of the law,” Katzmann said, remanding the case.

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