The Attorney General Questions The Right to Counsel

By Attorneys Robert Reeves and Jeremiah Johnson 

With less than two weeks left in office, the Attorney General issued a troubling decision affecting an alien’s right to counsel in removal proceedings.  The Attorney General’s decision, Matter of Compean, 24 I & N Dec. 710 (A.G. 2009), overruled the Board of Immigration Appeals’ two previous decisions in Matter of Lozada, and Matter of Assaad, finding there is no constitutionally protected right to counsel.  Such a ruling has profound impact on immigrants and their families and undermines our country’s notions of fundamental fairness and due process of law.  

Specifically, the Attorney General affirmed an individuals’ right to retain private counsel at no expense to the Government during removal proceedings, however, his affirmation came with a troubling qualification.  Calling the right to counsel a “privilege,” the Attorney General stated that this right was merely statutory and not constitutionally protected under the Fifth Amendment.  This qualification is a stark departure from past court precedents and well accepted immigration practice.  Indeed, prior to the Attorney General’s decision, the right to counsel was considered “fundamental” and a “due process right” right, one that the Ninth Circuit Court of Appeals indicated “must be respected in substance as well as in name.”  Furthermore, the court’s and Government’s previous understanding of the right to counsel included the right to effective counsel.  The Attorney General’s decision has now called into question our understanding of this fundamental right.  

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall … be deprived of life, liberty, or property, without due process of law.”  The Supreme Court has held that the Fifth Amendment applies to “all persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.  However, the Attorney General found that while the Constitution’s Fifth Amendment applies to removal proceedings, it can only be violated by Government action.  As such, the Constitution cannot protect an alien in removal proceedings against “private” counsel’s actions – no matter how egregious.  This finding leaves many aliens who have fallen victim to ineffective assistance from attorneys, consultants and “notarios” without any meaningful remedy.      

Most often, the issue of right to counsel comes up when an individual seeks to reopen their removal case based on mishandling by a prior attorney, consultant or “notario.”  Previously, the Board of Immigration Appeals required that a motion to reopen based on ineffective assistance of counsel be supported by an affidavit setting forth the agreement and representation by counsel; a copy of a letter informing counsel against whom the claim is made; and an indication in the motion whether a complaint to the State bar has been filed and if not, why not.  The Attorney General has now modified these requirements, requiring an alien to not only submit a detailed affidavit, but also include 1) a copy of the attorney client agreement; 2) a copy of a letter to the former attorney indicating the deficient performance and a copy of the response if any; 3) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; 4) evidence that the previous attorney failed to provide causing the ineffective assistance; and 5) a statement by new counsel expressing belief that the performance was below minimal standards of professional competence.  

Although an alien may still file a motion to reopen based on ineffective assistance of counsel by complying with the above requirements; reopening is by no means guaranteed.  The Attorney General considers reopening removal proceedings as a “matter of administrative grace” and the Board of Immigration appeals may reopen proceedings in the “extraordinary case where a lawyer’s deficient performance likely changed the outcome of the alien’s initial removal proceedings.”  This decision is left to the unfettered “discretion” of the Board or immigration judge and is not meaningfully protected from abuse.    

While the Matter of Compean is troubling, the Attorney General’s decision does not change the fact that an alien in removal proceedings has the opportunity, and the right to obtain an attorney of their own at his or her own expense.  However, the decision does change the protection afforded to an alien who either chooses an attorney unable to navigate the complex labyrinth of immigration laws or is the victim of deceptive practices by consultants or “notarios.”  As such, it is important to select a good immigration attorney.