Patrick Taurel, Legal Fellow and the American Immigration Council, provides an in-depth look...
Ineffective Assistance of Counsel
Noncitizens facing removal must have a meaningful opportunity to present their cases to an immigration judge. On occasion, noncitizens are deprived of this opportunity due to their lawyers’ incompetence or mistake. Although the government has recognized the need for a remedy for ineffective assistance of counsel, see Matter of Lozada, the framework currently used to evaluate whether ineffective assistance has occurred is severely flawed. The LAC has long worked to protect the right to effective assistance of counsel for noncitizens in removal proceedings.
Labissiere v. Holder, No. 13-2377 (2d Cir. amicus brief submitted Mar. 21, 2014)
In Labissiere, a petitioner sought review from the Second Circuit Court of Appeals after the BIA denied his pro se appeal. At the BIA, the petitioner argued that his attorney before the immigration court provided ineffective assistance of counsel, but the BIA denied his appeal, in part because he allegedly failed to comply with the procedural requirements for making an ineffective assistance claim set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The Second Circuit recognizes that individuals seeking to prove ineffective assistance need only substantially comply with the Lozada requirements. However, the court has provided little additional guidance, leading to a patchwork of unpublished decisions from the court and the BIA interpreting what amounts to compliance with the requirements. The Council submitted an amicus brief urging the court to broadly interpret the phrase “substantial compliance,” especially where ineffective assistance is clear on the record, where the individual making an ineffectiveness claim is detained or appearing pro se, and where the individual has provided a valid explanation for failure to comply with one or more of the Lozada requirements. After the Petitioner and amicus’ briefs were filed, the BIA granted the petitioner’s motion to reopen and therefore the Second Circuit dismissed the petition for review.
Matter of Compean, 24 I&N Dec. 710 (A.G. 2009), vacated by 25 I&N Dec. 1 (A.G. 2009)
On January 7, 2009, the Attorney General issued the first Matter of Compean decision, which reversed decades of precedent securing the right to effective assistance of counsel. Subsequently, the LAC (joined by numerous organizations and individuals) urged the Attorney General to reconsider the case. On June 3, 2009, the Attorney General issued the second Compean decision, vacating the prior decision. The June 3 decision directs the immigration judges and BIA to apply pre-Compean standards to motions to reopen based on ineffective assistance of counsel. It also directs EOIR to initiate a rulemaking procedure to evaluate the Lozada framework and to determine what modifications should be proposed for public consideration. To date, EOIR has not published a proposed rule for comment.
Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008)
In Afanwi, the court upheld the BIA’s finding that it lacked jurisdiction to reopen a case based on ineffective assistance of counsel because the ineffectiveness occurred after the completion of proceedings. The LAC filed an amicus brief on July 18, 2008 in support of rehearing. Although the court denied the petition for rehearing, subsequently, the Supreme Court granted a petition for certiorari, vacated the Fourth Circuit’s judgment, and remanded the case to the Fourth Circuit in light of the government’s position that the Attorney General had favorably resolved this issue in the second Matter of Compean decision. Afanwi v. Holder, 558 U.S. 801 (2009).
Matter of Assaad, 23 I&N Dec. 553 (BIA 2003)
At the request of the BIA, the LAC submitted several amicus briefs urging the BIA to affirm the right to seek a remedy for ineffective assistance of counsel and to adopt a more flexible procedure for bringing an ineffective assistance of counsel claim. In its decision, the BIA affirmed the right to seek a remedy for ineffective assistance of counsel, but did not amend the procedures for bringing such a claim.
In November 2009, the American Immigration Council sent a letter to the Executive Office for Immigration Review recommending steps the immigration courts and the Board of Immigration Appeals can take to protect the right to effective assistance of counsel and help ensure that noncitizens in removal proceedings are afforded a fair hearing. Read our statement and the letter.
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