RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL RETURNS!

By Robert L. Reeves & Nancy E. Miller

When placed into removal proceedings, the wise alien hires a knowledgeable and experienced immigration attorney to represent him.  In so doing, he reasonably relies upon his attorney’s expertise.  He hopes and expects that his attorney will raise and effectively present his case before the court.  Most of the time, his reliance is well-placed.  When it is not, he may be able to have his case reopened by raising a claim of ineffective assistance of counsel.

In 1988, the Board of Immigration Appeals (BIA) issued a decision in  Matter of Lozada, which established the procedural requirements for filing a motion to reopen deportation or removal proceedings based upon a claim of ineffective assistance of counsel. The Lozada  motion has four requirements.  It must be supported by affidavit setting forth the agreement and representations by counsel.  It must inform the counsel against whom the claim is made of the claim  and give counsel an opportunity to respond.  It must also reflect whether a claim or charge has been filed with the bar to which the counsel is a member.  If one has not been made, it must explain why not.   Finally, it must show how the alien was prejudiced by the action or inaction of his counsel.   
 
In a decision that shocked both the legal and the immigrant community, the former Attorney General overruled that well-established precedent on January 7, 2009 in Matter of Compean (Compean 1).  After paying lip-service to the fact that the Lozada framework had stood the test of time, former Attorney General Mukasey rejected its reasoning and ordered the Board not to rely upon it, even in the exercise of direction.  In so doing, he determined that there was no constitutional right to effective assistance of counsel in the immigration court context.  Under Compean 1, claims of ineffective assistance of counsel were to be decided as an exercise of the Attorney General’s administrative discretion. In addition, the new formulation needed to show prejudice differed from that followed by many courts.

On June 3, 2009, the current Attorney General, Eric H. Holder, Jr., vacated the Compean 1.   In what we will call Compean 2, Attorney General Holder instructed the BIA to follow the pre-Compean 1 standards to all pending and future motions to reopen based upon ineffective assistance of counsel, regardless of when such motions were filed.  In other words, Attorney General Holder  told the BIA to go back to the Lozada standard – even for motions that were filed during the time the decision was overruled.  The Attorney General. also took this opportunity to resolve a long-standing question of whether the BIA has the authority to reopen removal proceedings based on ineffective assistance of counsel conduct that occurred after a final order of removal had been entered.  The Attorney General  determined that the BIA did have the authority to consider such claims and to reopen those cases.  He declined to define the scope of the BIA’s discretion and left it to the BIA to make that determination. 
 
In addition to overruling Compean 1 and reinstating Lozada, the Attorney General  directed the Acting Director of the Executive Office for Immigration Review to initiate rulemaking procedures as soon as practicable to evaluate the Lozada framework and to determine what modifications should be proposed for public consideration.  Following solicitation of information and public comment by publication of a proposed rule in the Federal Register, a new or modified framework for reviewing claims of ineffective assistance of counsel in immigration proceedings may be instituted.  In the meantime, the standard that has existed for over twenty years is back.