The New Attorney General Reverses Field on Legal Representation in Removal Proceedings

Published: June 4, 2009

Just over 4 months after the outgoing Attorney General declared that foreign nationals do not have the right to effective representation in removal proceedings, the Obama Administration’s new Attorney General, Eric Holder, has undone that act. Attorney General Holder’s action to vacate the earlier decisions in the cases of Matter of Compean, Matter of Bangaly and Matter of J-E-C, restores more than a decade of jurisprudence establishing that foreign nationals are constitutionally entitled to “effective assistance of counsel,” and that a claim of ineffective counsel is not merely subject to discretionary “administrative grace.”

Although the Attorney General upheld the underlying decisions denying the requests to reopen these particular cases, he did confirm that a right to effective assistance of counsel in removal proceedings is guaranteed by the U.S. Constitution. He also directed formal rule-making to take place to establish procedures and a legal framework by which Motions to Reopen based on claims of ineffective assistance of counsel are to be evaluated, These rules, according to the Attorney General, are to be consistent with constitutional principles and the substantial body of case law that has evolved on the issue up to this point.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois