G.H. and E.P., citizens of Mexico, entered the United States without inspection. In an attempt to legalize immigration status, they contacted an immigration consultant, who promised to file papers enabling them to obtain legal permanent residency. The immigration consultant instead filed applications for asylum, which were denied, subjecting petitioners to deportation for entry without inspection.
During deportation proceedings the Immigration Judge repeatedly asked them if they wanted counsel, which they affirmatively waived each time due to the immigration consultants advice. Petitioners applications for suspension of deportation were denied for different reasons.
Almost four years later, after petitioners' appeals were dismissed, they retained counsel and filed a motion to reopen, contending a denial of due process due to deficient assistance from the immigration consultant. The Board of Immigration Appeals denied their motion and petitioners filed a petition for review. The petition was denied.
Reliance on mistaken advice of a non-attorney immigration consultant is insufficient to demonstrate the exceptional circumstances necessary for reopening an "in absentia deportation order". The Court found that non-attorney immigration consultants lack the expertise and legal and professional duties to their clients that are necessary preconditions for ineffective assistance of counsel claims.
Petitioners knew that the immigration consultant was not an attorney and relied on their advice and declined the Immigration Judges advice to retain an attorney. There was no denial of due process because they affirmatively chose to rely on the immigration consultants advice, knowing that he was not an attorney.
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