The Right to “Effective Assistance of Counsel” in Removal Proceedings
Published: February 9, 2009

When a foreign national is prejudiced by the ineffective assistance of his attorney in the context of removal proceedings, the foreign national has historically had a right to redress – a Motion to Reopen based on ineffective assistance of counsel. That right, however, has been pretty much eliminated and transformed into a possible avenue of redress as a result of directives issued by Attorney General Mukasey on the eve of his and the Bush administration’s departure from office.

The Attorney General used three Board of Immigration Appeals (BIA) cases as a vehicle to declare that the right to effective assistance of counsel in removal proceedings is not guaranteed by the U.S. Constitution, and that previous BIA precedent recognizing such a right would be overruled. Aliens prejudiced by their counsel’s poor performance or non-performance still technically have a chance to have their case reopened, but the constitutional underpinnings have been declared non-existent and the bar has been raised substantially regarding the proof required. Last, but not least, the opportunity for federal court review of a denied claim appears to have been effectively eliminated.

In Matter of Compean, Bangaly and J-E-C-, the Attorney General confirmed the continued availability of an avenue of redress for affected foreign nationals, but only at the “administrative grace” of the Department of Justice (includes Immigration Courts and BIA) involving “extraordinary cases, where a lawyer’s deficient performance likely has changed the outcome an alien’s removal proceedings”. Included in the new, stricter administrative framework are the following provisions:

  1. only the conduct of a lawyer, an accredited representative or a non-lawyer who the foreign national reasonably believed to be a lawyer, is relevant to such claims,
  2. the lawyer’s (or perceived lawyer’s) failings were egregious,
  3. the lawyer’s inadequate representation was the cause of the foreign national’s failure to obtain relief in removal proceedings,
  4. impacted foreign nationals must present a detailed set of documentation relating to the attorney/client relationship, including: copies of any retainer agreement, correspondence to the attorney outlining his deficient performance, letter to the attorney or disciplinary authority in the state in question (but not necessarily sent).

Failure to adhere to all of the governing provisions, versus the previous standard of “substantial compliance”, can be a basis to summarily dismiss such a claim.

Where does this leave us? Reopening requests based on ineffective assistance of counsel will now be left to the unfettered discretion of the Immigration Courts and BIA. As a consequence, the chance for meaningful, if any, federal court review has been eliminated.

This is undoubtedly not the last word on the subject, as the various legal and constitutional conclusions set forth in this recent Attorney General directive continue to be the subject of ongoing federal court challenges. Clearly, a hearty and exhaustive federal court review is indeed in order especially when the highest law enforcement officer in the land, in a poof, does away with what was previously deemed to be a constitutionally guaranteed safeguard for foreign nationals in removal proceedings.

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