"I Don't Remember" and Denial of Motion in Legal Malpractice

Immigration legal practice is rife with accusations of neglect, lack of knowledge and incompetence.  INS practice is based almost completely on forms, and knowing when and what to include with the ever-changing forms is the essence of good immigration legal work.  Attorneys often fail their immigration clients by telling them, in essence, "don't worry."

Shayan v O"Malley  2014 NY Slip Op 32144(U)  August 11, 2014  Supreme Court, New York County  Docket Number: 150447/2011  Judge: Ellen M. Coin is an example of what happens when the attorney's deposition consists of "I don't remember."

"This action arises out of defendants' representation of  plaintiff Ali Shay an (Shay an) concerning an immigration matter. Shayan, a native of Iran and citizen of Canada, claims that during
defendants' representation of him from January 2008 until December 4, 2009, defendants failed to advise Shayan of the need to renew his employment authorization document (EAD), and failed to file a proper and timely EAD renewal application, ·which led to the loss of his employment at Moody's Investors Service, Inc. (Moody's) for 11 weeks.   Shayan was born in Iran, and became a citizen of Canada in June 1997. He entered the United States in September 2004 as a visitor. From November 2004 to 2011, he was married to a United States citizen. On or about March 11, 2005, plaintiff retained an immigration attorney in California to change his immigration status from a B-2 visa to a "green card," which is a United States Permanent Resident Card (USCIS Form I-551), based on his marriage. In or around June 2005, Shayan received an EAD from the United
States Citizenship and Immigration Services (USCIS). This EAD expired one year later, in 2006. He moved to New York some time in 2005.

Around the summer of 2008, Castaneda assisted Shayan in learning the status of his EAD application, filed by his California attorney, and in getting fingerprinted in New York City to complete the application. As a consequence, in approximately July 2008, he received the actual EAD card, which was valid from September 17, 2007 through September 16, 2008. When he got the card, he informed Castaneda, who told him she would take care of getting a new card, since this one was about to expire. At a December 2008 meeting between Shayan and O'Malley, the two discussed the status of his EAD as follows: "Now since Diana was gone I asked Mr. O'Malley So I have two issues which Diana was working on for me. One is to postpone the Stokes interview. The second is to get my new EAD. Mr. O'Malley said, 'Don't worry about it. Diana is gone. I will take care of everything'" 1 (Shayan dep tr at 70:15-24). In 2009, when Shayan asked O'Malley about his EAD, O'Malley advised him that "he was not required to renew his EAD, because he had not changed employers and that he was not required to renew his EAD unless he planned to change employers. The defendants took no action to extend [Shayan's] EAD and it expired" (complaint, 'JI 20, Shayan aff, ! 17, Shayan dep tr at 72:8-12).

On or about December 3, 2009, Moody's terminated Shayan' s employment on the ground that his EAD had expired, but agreed to allow Shayan to remain employed pending the outcome of the December 18, 2009 conference. On December 4, 2009, Shayan met with O'Malley to discuss the
potential termination of his employment and the December 18th conference. Shayan alleges that at that meeting, O'Malley advised him that he was not eligible for an EAD "and that he should work
illegally" (id., ! 32). Further, Shayan alleges, O'Malley advised him that defendants had filed an application for an EAD extension, as part of the December 2, 2009 filing, without Shayan's knowledge. Shayan was not satisfied with defendants' responses and terminated
their representation on December 4, 2009.

Klapisch followed up on the EAD application filed by O'Malley, and was able to obtain a new EAD for Shayan on February 1, 2010. Shayan successfully obtained his green card as well. Moody's
reinstated his employment on March 3, 2010.

On their motion, defendants have not successfully argued that there is no question of fact with respect to Shayan' s claim.  First, defendants argue that Shayan is unable to establish the
causation between any failure on defendants' part and Moody's 9 [* 9]termination of Shayan, because Moody's terminated Shayan for lying on his I-9 form. The record, however, does not support this position. The December 21, 2009 email from human resources at Moody's to Susan Hourihan, a Human Resources Generalist at Moody's, indicates the reason for Shayan's termination as "Work Authorization Expired." At her deposition, Hourihan testified that Shayan' s employment was terminated because of his failure to produce proof of a valid work authorization. There is nothing in the record establishing that Moody's terminated Shayan because he
lied on his I-9 form.

Defendants do not deny that Shayan' s EAD had expired, that Shayan made requests to defendants for help with his EAD renewal, or that the firm filed an application for an extension or renewal
of Shayan's EAD on December 2, 2009. Instead, defendants' position on this point is not entirely clear. Defendants argue that they were hired by Shayan to address only the deportation hearings and the Stokes hearing, and that they did so successfully. Defendants do not deny Shayan's need for the extension of his EAD, or explain Castaneda's actions assisting Shayan with his EAD application, or why they did not file an application for an extension of his EAD prior to December 2, 2009. During his deposition, when asked why he did not take steps to extend Shayan's EAD, O'Malley replied that based upon conversations with Ali in "early 2008 into 2008 when he
"understood that [Shayan' s] attorney in Los Angeles was dealing with that issue (O'Malley tr at 81-82). "

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