Best defense—in boxing and in law

“Mayweather must love me very much, he kept hugging me,” joked Manny Pacquiao after their “Fight of the Century”.

There is an ancient adage that “the best defense is a good offense” which means that "if you attack your opponents, they will be so busy fighting off your attack that they will not be able to attack you.” See The Free Dictionary by Farlex.

Mayweather’s defense was dance a boxing “cha cha cha” (one step forward, two steps backward) to evade Pacquiao’s punches and when Pacquiao managed to get close to Mayweather, he would hug Pacquiao, thereby preventing Pacquiao from hitting him. It was a winning strategy, although unimpressive. A disgusted spectator twitted that this was not a boxing bout but “Dancing with the Stars”.

Mayweather’s tactic differs from Muhammad Ali’s winning rope-a-dope strategy against George Foreman in the Rumble in the Jungle. Ali would back against the ropes and protect his head while Foreman kept punching at Ali’s body until Foreman got tired, and then Ali would counter attack. Pacquiao skillfully used the rope-a-dope strategy against Miguel Cotto in their 2009 WBO welterweight championship fight resulting in a knockout. Rope-a-dope involves body contact, but boxing cha cha cha’s purpose is to avoid body contact.

In immigration law, however, a lawyer who dances an immigration cha cha cha or does a rope-a-dope will lose and the client will be deported. The best defense is to deny all charges so that the government is kept busy proving them.

An alien applied for adjustment of status. It was denied. The alien divorced her husband and married another. The new husband filed an immigration visa petition for the alien and the alien filed an application for adjustment of status. It was approved. Later USCIS discovered a birth certificate of the alien containing a birth date different from what she stated in her first application for adjustment of status. The alien was placed in removal proceedings for fraud.

Her lawyer admitted the allegations of the notice to appear and conceded removability. Later the lawyer, without any explanation, denied the charges. At the next hearing, the judge asked why the lawyer was contesting the charges. The lawyer responded that she was not contesting the charges but was conceding them.

The Judge was confounded and irritated. The lawyer was dancing an immigration cha cha cha. The lawyer abruptly changed strategies without any reason or explanation. This is ineffective assistance of counsel. The judge ordered the alien removed.

The alien hired a second lawyer to appeal to the Board of Immigration Appeals. The second lawyer charged the first lawyer as ineffective for conceding the charges. The Board dismissed the appeal, saying that the first lawyer’s admission of removability was binding on the alien, and that the charge of ineffective assistance of counsel could not be sustained because the second lawyer did not comply with the Lozada requirements. Under Lozada, the lawyer accusing another of ineffectiveness must notify the first lawyer of the charge and get the lawyer’s explanation and must also file a complaint against the first lawyer with the Bar association and/or the state Supreme Court.

The alien hired this writer as her third lawyer to appeal to the Court of Appeals. We contended that the first two lawyers were ineffective. We complied with the Lozada requirements. We contended that the inexplicable conduct of the first attorney in doing an immigration cha cha cha was so deficient and so inadequate resulting in prejudice to the alien because it may have affected the outcome of the proceeding, thereby denying the alien due process. If the first lawyer had not conceded removability, the alien would have had a plausible relief—termination of the proceedings for failure of the DHS to establish materiality and willfulness of the misrepresentation. Misstating the date of birth in an immigration application was not material because even if the alien stated her true date of birth rather than an incorrect date she would still be entitled to adjustment of status since she was being petitioned by her husband and she was of legal age at the time of their marriage. We contended that the second lawyer was ineffective for not complying with Lozada in charging the first lawyer with ineffectiveness. The appeal is pending.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)