STATEWIDE GRIEVANCE COMMITTEE
Amer Almasoudi, Complainant vs. Jose L. Delcastillosalamanca, Respondent
Grievance Complaint #02-0662
DECISION
Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted hearings at the Superior Court, 1061 Main Street, Bridgeport, Connecticut on December 3, 2003, and at the Superior Court, 300 Grand Street, Waterbury, Connecticut on March 2, 2004. The hearings addressed the record of the complaint filed on May 19, 2003, and the probable cause determination filed by a reviewing committee of the Statewide Grievance Committee on August 22, 2003, finding that there existed probable cause that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct. This probable cause determination was contrary to the determination of no probable cause filed by the Hartford Judicial District for Geographical Area 13 and the town of Hartford Grievance Panel on May 19, 2003.
Notices of the hearings were mailed to the Complainant and to the Respondent on October 31, 2003 and February 6, 2004, respectively. At the hearings, the Complainant and the Respondent appeared and testified. Attorney Donald Davidson represented the Complainant. This reviewing committee took note of the existence of a second grievance complaint that was filed by the Complainant's wife, Debra Almasoudi, against the Respondent (Almasoudi v. Delcastillosalamanca, grievance complaint #02-0661). The probable cause findings in Mrs. Almasoudi's complaint are identical to those in the instant complaint and were based on the same conduct by the Respondent. As a result, this reviewing committee consolidated the two complaints for purposes of the hearings. Debra Almasoudi testified on behalf of the Complainant at both hearings. Tanya Dorman testified on behalf of the Respondent at the March 2, 2004 hearing. Three exhibits were admitted into evidence. Reviewing committee member Attorney Dominick Rutigliano was not present at either hearing. Both the Respondent and the Complainant waived the participation of Attorney Rutigliano. Accordingly, this decision was rendered by the undersigned.
This reviewing committee finds the following facts by clear and convincing evidence:
The Complainant is a native of Sudan and a citizen of Yemen. The Complainant married Debra Almasoudi on July 21, 1997 in Derby, Vermont. Ms. Almasoudi is an American citizen. The Complainant had obtained a temporary visa allowing him to be in the United States but the visa had expired. The Complainant and Ms. Almasoudi planned to travel to Canada after their wedding but were stopped at the United States border patrol office. Because the Complainant's visa had expired, the border patrol brought him to the immigration office in Richford, Vermont where he was detained. At the immigration office, the Complainant was notified that he would be deported because his visa had expired. The Complainant was given three options as set forth on a form provided to the Complainant by the immigration officer. The Complainant checked the box indicating that he would voluntarily depart the United States and, thereafter, was ordered to leave the United States by August 21, 1997 and was released.
Upon the Complainant's return to Connecticut, he and Ms. Almasoudi retained the Respondent to represent them. The Respondent provided Ms. Almasoudi with Form I-130, a form entitled "Petition for Alien Relative." The form allows a United States citizen to petition the immigration court to permit a foreign spouse to receive an immigrant's visa based on his or her status as a relative of a United States citizen. The Respondent filed the completed form and the necessary supporting documentation on October 31, 1997 with the immigration court.
Because the Complainant overstayed the voluntary departure date of August 21, 1997, the immigration court commenced removal proceedings against him on March 26, 1998. In December of 1998, the immigration court issued an oral decision in which the Complainant was ordered deported to Yemen. The court concluded that the Complainant's failure to leave the United States voluntarily rendered him ineligible for either voluntary departure or for an adjustment of his status. In its oral decision, the immigration court was highly critical of the Respondent's performance on behalf of the Complainant. The court cited numerous shortcomings with the Respondent's conduct, including but not limited to: issuing a defective subpoena; moving to exclude evidence that was never offered; failing to define "egregious behavior" as alleged in the motion; failing to provide an affidavit made by the Complainant on his own behalf; making contradictory claims; making inaccurate statements; and filing a request for an extension of time in which to leave the United States on the day the Complainant was ordered to leave the United States.
The Respondent appealed the Complainant’s deportation order to the Immigration Board of Appeals (hereinafter the "BIA"). On the appeal form submitted by the Respondent, he indicated on item number six that a brief would be filed on the Complainant's behalf. The form submitted by the Respondent clearly states that, "your appeal may be summarily dismissed if you indicate in item #6 that you will file a separate written brief or statement and, within the time set for filing, you fail to file the brief or statement and do not reasonably explain such failure." Thereafter, the BIA ordered that the brief be submitted by May 12, 1999. The Respondent requested additional time to file the brief and the court granted him an extension until June 2, 1999. The Respondent did not file the brief and, as a result, on January 25, 2002 notice was sent to the Respondent that the Complainant's appeal was summarily dismissed for failing to file a brief and failing to explain the failure to file the brief.
After the appeal was dismissed on January 25, 2002, the Respondent communicated with the Complainant and Ms. Almasoudi on numerous occasions. During those discussions, the Respondent did not advise the Complainant or Ms. Almasoudi that the appeal had been dismissed. On or about February 4, 2002, the Respondent filed a motion to open the Complainant's deportation order. The BIA denied that motion on October 10, 2002. On December 10, 2002 Attorney Tanya Dorman, an associate of the Respondent, met with the Complainant and Ms. Almasoudi and advised them that their matter had been dismissed. Attorney Dorman provided the Complainant with a copy of the BIA's decision and advised him that they could appeal to the Second Circuit Court of Appeals for an additional fee.
Discovering that his appeal had been dismissed due to the Respondent's failure to file a brief, the Complainant and Ms. Almasoudi contacted Attorney Crescenzo Deluca for advice. Attorney Deluca advised them that thirty days had passed since the BIA issued its decision and that the appeal period had expired. On or about December 19, 2002, Attorney Deluca wrote to the Respondent requesting the Complainant's file and advising the Respondent that the Complainant had retained him to handle their immigration matter. Attorney Deluca was later successful in getting the Complainant's voluntary departure revoked and, at the time of the December 3, 2003 hearing, the Complainant was awaiting his Alien Registration Receipt Card (Form I-551), commonly known as a "green card.”
This reviewing committee also considered the following:
In an affidavit attached to the February 4, 2002 motion to open the dismissal that was submitted to the BIA, the Respondent stated that he failed to file the brief due to personal issues and staffing problems in his law office. Also in the affidavit, the Respondent stated that he sent a request for an extension of time to file the brief on June 1, 1999 that was not responded to by the court. However, in subsequent testimony the Respondent asserted that he had submitted the brief by overnight service on June 1, 1999. In support of this assertion, the Respondent offered a copy of a UPS receipt dated June 1, 1999. The receipt did not indicate on whose behalf the package was sent, nor did it indicate what the package contained. The Respondent also submitted a copy of a brief that purported to be the brief he had written on behalf of the Complainant. The brief was not finished, was not signed, and contained editing marks. When asked by this reviewing committee if he could produce a copy of the finished brief, the Respondent stated that he could not.
The Respondent further asserted that even if he had failed to file the brief on behalf of the Complainant, that would not have affected the final outcome of the case. The Respondent asserted that the Complainant's case would not have been successful in any event because he had voluntarily agreed to leave the United States. Notwithstanding the fact that the Respondent filed the appeal of the Complainant's case before the BIA, he argued that he was only retained to represent the Complainant in relation to the case before the immigration court and was not obligated to pursue the appeal to the BIA.
This reviewing committee concludes by clear and convincing evidence that the Respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct. This reviewing committee finds that the Respondent undertook the representation of the Complainant in his appeal, as confirmed by the Respondent's filing the appeal with the BIA. Once the Respondent filed the appeal, he was obligated to pursue the Complainant's appeal with diligence and promptness. Once the Respondent chose to file the appeal indicating that a brief would be filed in support thereof, he was required to file the brief on time. His failure to file the brief in a timely manner resulted in the dismissal of the Complainant's appeal and seriously compromised the Complainant's interests, in violation of Rule 1.3 of the Rules of Professional Conduct. The Respondent was unable to produce any credible evidence that the brief was filed with the BIA on or before June 2, 1999. This reviewing committee questions the veracity of the Respondent's assertion that he filed the brief by sending it via UPS on June 1, 1999.
This reviewing committee concludes by clear and convincing evidence that the Respondent violated Rule 1.4(b) of the Rules of Professional Conduct. This reviewing committee finds that the Respondent was notified that the Complainant's appeal had been dismissed on or about January 25, 2002. Further, the Respondent was notified that the reason for the dismissal was his failure to file a brief in support of the appeal. When the Respondent learned that the Complainant's appeal had been dismissed in January of 2002, he knew or should have known that there was a thirty day period in which to appeal the decision. In order to adequately protect the Complainant's interests, the Respondent should have notified the Complainant soon thereafter and advised him of his options. It is particularly disturbing that the Respondent did not personally speak with the Complainant regarding the dismissal and left it to an associate to notify the Complainant eleven months after the appeal period had lapsed. The Respondent's failure to timely advise the Complainant of the dismissal severely compromised the Complainant's appeal rights and violated Rule 1.4(b) of the Rules of Professional Conduct. Accordingly, this reviewing committee reprimands the Respondent.
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Attorney Rita A. Steinberger
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Reverend Meredith Payton