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Liu v. Allen

March 16, 2006

SHI MUI LIU AND TUNG HOI WONG, APPELLANTS,
v.
SUSAN AU ALLEN, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-849-00) Hon. A. Franklin Burgess, Jr., Trial Judge.

The opinion of the court was delivered by: Glickman, Associate Judge

Argued January 25, 2005

Before WASHINGTON, Chief Judge,*fn1 and SCHWELB and GLICKMAN, Associate Judges.

This appeal from a defense verdict in a legal malpractice action turns on whether the attorney was negligent as a matter of law. We hold not. Accordingly, the jury's decision stands.

I.

Susan Au Allen is an attorney who practices in the field of immigration law. In 1989, Allen was engaged to obtain immigrant status for Shi Mui Liu based on the offer of a job for her as a seamstress at The Marine Shop, a military uniform store in Quantico, Virginia. Liu was living then in Hong Kong, where she was employed by the Blooming Star Manufacturing Company ("Blooming Star"). Allen proceeded to file the necessary applications. In July of 1994, after the Department of Labor had issued an alien employment certificate, the Immigration and Naturalization Service ("INS") approved an immigrant visa petition filed by The Marine Shop to classify Liu as an unskilled prospective immigrant worker.

A year later, on June 15, 1995, Liu came to the United States with her husband Tung Hoi Wong on a temporary visitor's visa. During her visit, Allen advised Liu that she could extend her stay and apply for an adjustment of her visitor's status to that of a legal permanent resident alien; that is, in common parlance, Allen told Liu that "you can change from your visitor's visa to a green card." Liu decided to take advantage of the opportunity thus presented and asked Allen to apply for a green card for her and for Wong as her spouse.

Allen filed Liu's application for an adjustment of status, together with a request for interim employment authorization, in September 1995. The INS approved the employment authorization in November (enabling Liu to work at The Marine Shop during the pendency of her green card application) and scheduled Liu and Wong for an interview at the INS District Office in Baltimore.

At the conclusion of that interview, which took place in March of 1996, and which Allen attended, the adjudication officer advised that Liu and Wong would be notified when the INS reached a decision on their applications. Although Allen believed that the applications were straightforward and problem-free, the adjudication officer had raised questions during the interview relating to her clients' residence and their intentions in coming to the United States.

Six months later, on October 2, 1996, the INS issued a letter denying Liu's and Wong's applications for permanent resident status on the ground that Liu had a "preconceived intent to immigrate" when she applied for her temporary visitor's visa and therefore had "misrepresented a material fact to procure that visa." The denial letter gave Liu fifteen days to show why her employment authorization, which was linked to the pendency of her application, should not be revoked.

When Allen reviewed the letter of denial, she realized that the INS had based its decision on a misreading of Liu's application. The application clearly stated that Liu had worked for Blooming Star in Hong Kong until May of 1995 and then entered the United States on her temporary visitor's visa the following month. Inexplicably, however, the INS erroneously understood that Blooming Star was located in the United States, and therefore that Liu had left this country (not Hong Kong) in May 1995 in order to "return" here the following month on a temporary visa. The INS inferred that Liu executed such a maneuver "to insure that [she] would be in valid immigration status at the time of filing [her] application for permanent residence to circumvent from [sic] having to pay the large penalty fee for being out of status." This mistaken reasoning led the INS to conclude that Liu improperly had "entered the United States as a visitor with the intent to immigrate."

Allen promptly sent a lengthy letter to the INS on October 16, 1996, pointing out the INS's evident factual errors and asking it to reverse its decision. In mid-November, she received a standard form response, which suggested that she file a motion for reconsideration as outlined in Title 8 of the Code of Federal Regulations. Allen was given the same advice when she spoke with the INS Baltimore District Counsel about the matter a week later. By this point, the time for filing a formal motion for reconsideration of the October 2 denial had expired, because 8 C.F.R. § 103.5 (a)(1)(i) (1996) required such a motion to be filed "within 30 days of the decision that the motion seeks to reconsider." The motion also had to be accompanied by a non-refundable $110.00 filing fee. 8 C.F.R. §§ 103.5 (a)(1)(iii)(C); 103.7. Recognizing these requirements, Allen wrote the INS on December 2, 1996, to request that her October 16 letter be treated as a motion for reconsideration (which it in substance was), and she enclosed the filing fee.

On January 22, 1997, the INS notified Allen that her motion for reconsideration -- which it treated as having been filed on December 2, not October 16 -- was dismissed as untimely.*fn2 Declining, therefore, to re-examine its denial of Liu's green card application, the INS also revoked her employment authorization.

While the INS decision was not appealable, Liu and Wong were not subject to immediate deportation, and the denial of Liu's first green card application did not preclude her from filing a second one. Allen offered to re-file the application at no charge. Having lost confidence in Allen, however, Liu retained new counsel to renew the ...


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