When ineffective assistance of counsel results in prejudice against a client, the proper remedy is to place the client in the same position s/he would have occupied at the time the error occurred under the law as it existed at that time.[103]  Thus, the proper remedy for ineffective assistance of counsel at sentencing is to give the defendant the sentence s/he would likely have received absent counsel’s error.[104]  In the alternative, the defendant should be given a fresh sentencing hearing with all possibilities open that were open at the time of the original sentencing. 

 

It is important for counsel to offer the criminal court a ground of invalidity of the original conviction or sentence that is separate from the goal of obtaining an opportunity to receive a timely JRAD.[105]

 

[103] See Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (where counsel was ineffective for failing to file a suspension application due in 1994, before the stop-time rule of NACARA came into effect in 1997, the proper remedy required use of the deadline in effect in 1994 when the ineffectiveness occurred, to allow timely filing); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[104] United States v. Fernandez, 2000 WL 1716436 (S.D.N.Y. 2000).

[105] See United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840 (1954) (dissenting opinion); United States v. Sambro, 454 F.2d 918, 924-27 (D.C. Cir. 1971) (dissenting opinion).

Second Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - REMEDY FOR IAC REQUIRES PLACING DEFENDANT IN POSITION S/HE WOULD HAVE OCCUPIED IF ERROR HAD NOT OCCURRED, INCLUDING STAYING TIME DEADLINES
Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled).      In determining whether nunc pro tun relief could be applied in this case, the court looked at the following issues:      1. Statutory bar:      "A court may not award equitable relief in contravention of the expressed intent of Congress. See INS v. Pangilinan, 486 U.S. 875, 883-85, 100 L. Ed. 2d 882, 108 S. Ct. 2210 (1988)." Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. Dec. 17, 2004) The court identified cases where the BIA had granted nunc pro tunc relief in the past, and noted that Congress never amended INA 212(c) to bar such grants. Id.      2. When nunc pro tunc relief should be afforded:      The court stated generally that "where an agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit - "fairness to the parties," Weil v. Markowitz , 264 U.S. App. D.C. 381, 829 F.2d 166, 175 (D.C. Cir. 1987), dictates that the error be remedied nunc pro tunc. See e.g., Ethyl Corp., 67 F.3d at 945; see also Batanic, 12 F.3d at 667-68." Edwards v. INS, 393 F.3d, at 310. Applying this to the immigration context, the court found that nunc pro tunc relief should be available were the noncitizen has demonstrated that s/he was erroneously denied the opportunity to apply the relief due to an error on the part of the agency, and that, but for nunc pro tunc relief, the denial of relief would be irremediable. The court stated that the noncitizen, outside an illegal reentry context, did not need to show that a denial of the relief would result in a denial of due process.      3. What error may nunc pro tunc relief be used to correct:      Despite arguments that the doctrine of nunc pro tunc may only be used to correct inadvertent errors, and not to remedy a defect in a judgment order, the court held that in the immigration context nunc pro tunc relief was available to correct such defects in the immigration context. Edwards v. INS, 393 F.3d, at 309 n. 12.

Ninth Circuit

POST CON RELIEF - GROUNDS - IAC - REMEDY
Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed to respondent’s detriment, to review Immigration Judge’s originally erroneous finding that expunged misdemeanor weapons conviction constituted conviction for immigration purposes).      The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing). Where the BIA’s failure to timely remedy an IJ's error denies respondent the benefit of the law in effect at the time of the original hearing, the only meaningful remedy is to give the respondent a hearing under the law that would have applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at 1212.