AS a swan song to the Bush Administration’s seemingly relentless assault on aliens’ due process rights, Attorney General Michael B. Mukasey issued a decision on January 7, 2009 purporting to eviscerate a Respondent’s right to be protected from "ineffective assistance of counsel" in removal proceedings. Undoing decades of jurisprudence respecting an alien’s right to effective assistance of counsel as rooted in the due process clause of the 5th Amendment, Mukasey ruled that because removal proceedings are "civil and not criminal," the Constitutional guarantees do not apply. This ruling, if not overturned by the US Circuit Courts of Appeal, effectively protects inept lawyers from client complaints and leaves the victims in all but the most egregious cases left without redress.
An alien’s right to effective assistance of counsel has long been recognized as part and parcel of the right to fundamental fairness, or due process, in removal proceedings. Although the Constitution does not expressly provide for "right to counsel," as the 6th amendment provides for accused criminals, Federal Courts and the Board of Immigration Appeals (BIA) have roundly respected the right to effective assistance of counsel in removal proceedings for decades. In Matter of Lozada (BIA 1988), the seminal administrative case on the subject, the BIA set forth three basic requirements for an alien to seek relief from the damaging effects of an attorney’s ineffective assistance.
Under Lozada, an alien who sought to reopen a case on the basis of ineffective assistance of counsel was required to submit: 1. an affidavit of the allegedly aggrieved Respondent setting forth in detail the agreement that was entered into with counsel with Respect to the actions to be taken and what representations counsel did or did not make to the Respondent in this regard; 2. proof that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him or her and be given an opportunity to respond and; 3. evidence that a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not.
For more than 20 years, Lozada’s standards served the Immigration Courts, the BIA and Federal Courts well in guaranteeing that the rights of aliens were protected in removal proceedings, which was especially important given the vulnerability of immigrants to fraud, abuse and in many cases, just inept lawyering. In one fell swoop, AG Mukasey held in 3 related cases; Matter of Compean, Bangaly and J-E-C, that aliens in removal proceedings have NO right to effective assistance of counsel under the 5th amendment; overruling overruled Lozada. As an act of "administrative grace," however, Mukasey held that the Court or BIA may still reopen a case in which an attorney’s ineffective assistance rises to the level of "egregious," which word was never part of the Lozada analysis.
Now, an alien whose hopes have been dashed and representation destroyed by the errors of an incompetent or reckless attorney’s representation must comply with an onerous set of requirements to seek to have any adverse ruling set aside and the proceedings reopened. Under Compean, the alien must submit: 1. a detailed affidavit setting forth the facts that form, the basis of the ineffective assistance of counsel claim; 2. a copy of his retainer agreement with the attorney; 3. a copy of a letter to his former attorney specifying the attorney’s deficient representation; and a copy of the attorney’s response; 4. a completed and signed complaint addressed to, but not necessarily sent, the State bar disciplinary board; 5. copies of documentary evidence or an affidavit of testimony that the attorney failed to submit in providing ineffective assistance; and 6. a statement by the alien’s new attorney expressing an opinion as to why the previous attorney’s representation was ineffective.
People in removal proceedings may not suffer the devastating impact of Mukasey’s final official act as AG for many months. The decision, however, makes no exception for those whose motions to reopen are currently under review for past ineffective assistance of counsel or are on appeal at the BIA currently. In the absence of a reversal of this decision at the Federal Court of Appeal level, Respondents in removal proceedings must be extremely careful in not only choosing counsel in the first place, but in deciding whether to keep their attorney if there is any indicia that the attorney is not serving their best interests once the removal proceedings have commenced.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon & Greene, a Professional Corporation, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon & Greene is an immigration and full-service law firm. E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlon-greene.com
( Published on January 17, 2009 in Asian Journal Los Angeles p. C3 )
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