Ashraf Habib was accused of gaining his lawful permanent residency through fraud.  Specifically, the Government alleged that Habib gained his residency through marriage to a US citizen, but that at the time, he was still married to a woman in Pakistan.  Habib failed to disclose his Pakistani wife or three children  on his application for residency or for his application for citizenship.  At trial, Habib's attorney denied the Government's allegation that Habib’s marriage to his deceased U.S. citizens spouse was not legally valid because not divorced from his wife in Pakistan.  His attorney, however, seemingly contradicted himself by admitting the materially identical allegation that Habib was not validly married to a United States citizen when he gained his residency.  His attorney also admitted that Habib had three children in Pakistan, but denied that Habib was removable for having committed fraud.

At the beginning of Habib's merits hearing, his attorney submitted a divorce decree which purported to show that Habib had divorced his Pakistani wife 2 years before marrying his American wife.  The attorney stated that he “believed” he previously had submitted a copy of this divorce decree to the government.  But when the government’s attorney disputed this assertion, the attorney said that he “just got it recently.”  The Immigration Judge (IJ) stated that Habib could be questioned about the divorce decree during his testimony but reserved ruling on the admissibility of the document.

Habib then testified about his marriage to his deceased U.S. citizen spouse and the reason he omitted his Pakistani wife and children from his immigration applications.  When asked about his divorce, Habib testified that he was divorced from his first wife in 1999, but the Government asserted that this was contradicted by his attorney's admission to the factual allegation about his invalid second marriage.  "In response, Habib’s lawyer mumbled something about a 'mistake' but did not move to retract the admission of [the] allegation."  

The IJ determined that Habib’s failure to disclose his children and his first marriage was material because the misrepresentation “cut off [a] line of inquiry and prevented the Government from conducting a full analysis of all factors relevant to the validity of” Habib’s second marriage.  The IJ noted that the divorce decree was an untimely submission and emphasized that Habib's attorney initially admitted that his second marriage was invalid and never sought to retract that admission.

Habib retained new counsel, appealed his case to the Board of Immigration Appeals (BIA), and moved to reopen his proceedings on account of ineffective assistance of counsel.  He claimed that he had timely provided the divorce decree to his prior attorney.  His prior attorney did not respond to these allegations, but instead, another attorney at his firm claimed that the document was not timely received by the office.  Habib denied the accuracy of this statement.  The BIA affirmed the IJ's decision and denied Habib's motion to reopen, stating that it could not conclude that Habib's prior attorney's failure to timely submit the divorce decree resulted from “deficient performance” because neither Habib nor his former lawyer specified precisely when Habib gave the divorce decree to his prior attorney.  The BIA also determined that Habib had not shown he was prejudiced by his prior attorney's admission that his second marriage was invalid because the Government submitted substantial evidence challenging the validity of that marriage and Habib had admitted during testimony that he “‘lied on purpose’ when he failed to mention his first wife and his children” in his applications.

The Seventh Circuit disagreed, finding that Habib's prior attorney's admission effectively waived Habib’s defense to removal, and an attorney’s waiver of a complete defense to removal prejudices the client.  In addition, the fact that the Government had put forward evidence that Habib had failed to disclose his first wife and children was no dispositive.  If Habib could prove that his second marriage was valid, he could demonstrate that he was still eligible for residency, despite the omissions in his application.  For this reason, his prior attorney's failure to timely submit the divorce decree was also substandard performance that prejudiced Habib's case.

The full text of Habib v. Lynch can be found here: