A Fair Day in Court: Why Attorney General Holder Must Affirm the Right to Effective Assistance of Counsel in Immigration Proceedings

Elizabeth Yaeger on 08/10/2009

I.          INTRODUCTION

Each year, the United States government deports hundreds of thousands of aliens.[1] These individuals are first brought before an Immigration Judge who decides their fate: permission to remain, voluntary departure, or exile. Largely unfamiliar with U.S. immigration laws, and faced with crippling linguistic, cultural, and socioeconomic barriers, they must navigate exceedingly complex statutory waters as they attempt to convince the adjudicator to allow them to stay in this country. Unsurprisingly, many grasp for whatever legal assistance they can find.

            Yet good help rarely comes easily. The practice of immigration law is plagued by unscrupulous fraudsters, misleading “consultants,” and other who, though perhaps well-meaning, simply lack expertise. The Second Circuit Court of Appeals has observed: “With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country.”[2] And the stakes are high: an attorney’s mistake can result in deportation, separation of families, and even persecution or death.

            For decades, most federal appellate courts and the Board of Immigration Appeals held that aliens who fall victim to attorney incompetence had the right have their cases reopened and decided on the merits. But on January 7, 2009, mere days before the Bush administration left office, outgoing Attorney General Michael Mukasey used an obscure procedure to reverse this longstanding rule. In Matter of Compean,[3] Mukasey wrote that neither the Fifth Amendment nor any other source of law afforded aliens in removal proceedings the right to effective assistance of counsel. An alien whose deportation was caused by the incompetence of his own privately retained attorney, Mukasey proclaimed, does not have the right to a “second bite at the apple.”[4]

This 11th hour decision has dubious legal foundations and disastrous consequences. Although the federal appeals courts that recognize a right to effective assistance of counsel need not defer to Compean, its command that all courts “should apply the framework set forth below in toto, even in circuits that have previously held that there is a constitutional right to effective assistance of counsel” will create confusion.[5] Where Compean is applied, the new procedural obstacles it creates and the purely discretionary review it provides will prevent many aliens from challenging their deportations. As a result, more people who may have otherwise been permitted to stay in the United States, and whose only mistake was hiring a bad lawyer, will instead find themselves serving a “life sentence of exile.”[6]

            This article argues that Mukasey was wrong, and that aliens’ right to effective assistance of counsel has a strong foundation in the Constitution and the immigration statutory scheme. Part II provides background on how the removal process functions and the importance of counsel in removal proceedings. It then unravels the history of the right to effective assistance of counsel in immigration proceedings, before exposing the Attorney General’s opinion in Compean. Part III argues that Compean was wrongly decided and recommends actions that the courts and recently appointed Attorney General Eric Holder should take to fix the error committed by Compean.

II.        BACKGROUND

A.        How Removal Proceedings Work

            The Department of Homeland Security (DHS) is the executive agency charged with administering the immigration laws.[7] Its enforcement arm is the Bureau of Immigration and Customs Enforcement (ICE), which in effect serves as the immigration “police.”[8] ICE agents detain aliens who are not in lawful immigration status, charge them with being deportable, and provide the trial attorneys who then represent the government in the ensuing removal proceedings before an Immigration Judge (IJ).[9]

            The IJs operate under the Executive Office of Immigration Review (EOIR), which in turn answers to the Attorney General.[10] In immigration court, the government attorney has the burden of proving that the alien is deportable.[11] The alien may contest the charge and seek any available form of relief.[12] He may challenge the government’s evidence, give testimony, call witnesses, and offer other documentary evidence.[13] Whether an alien can claim relief depends on many factors, including his current and past immigration status, how and when he entered the United States, and his family relationships, criminal history, and country of origin. If the IJ finds the alien is not entitled to any relief that would allow him to stay in the United States, the IJ either enters a final order of removal or grants the alien voluntary departure.[14] If the IJ grants voluntary departure, the IJ must also enter an alternate removal order that automatically takes effect if the terms of the voluntary departure are violated.[15]

            As many commentators have observed, the present immigration adjudication system is severely flawed.[16] IJs are ill-trained and insufficient in number to handle their substantial and increasing caseloads.[17] They vary widely in the rates at which they grant asylum applications, even when they work next to each other in the same courthouse and are deciding large numbers of applications by refugees from the same country.[18] Though adverse decisions may be appealed to the Board of Immigration Appeals (BIA)––an 11- to 15-member body appointed by the Attorney General––many cases receive no meaningful appellate review.[19] Since 2002, when then- Attorney General John Ashcroft fired five of the Board’s more liberal members, authorized greater use of summary dismissals and affirmances without opinion, and mandated the swift reduction of an enormous backlog, the Board’s rate of deciding cases favorably to aliens has plunged, causing a surge of petitions for review to the federal courts.[20]  The Seventh Circuit Court of Appeals has criticized the Justice Department’s “attempt to defeat judicial review by refusing to staff the immigration court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions.”[21]

B.        The Importance of Effective Counsel in Removal Proceedings

Certain attributes of removal proceedings, and of the individuals typically ensnared in them, make the presence of counsel extremely important for anyone hoping to avoid a final order of removal. Immigration law is notoriously difficult to navigate. As one court put it: “With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’”[22] The rules and procedures change frequently with the publication of new statutes and agency guidelines and with decisions by the BIA and the federal courts. Those whose lives are at stake are particularly ill-equipped to navigate the system. Aliens in removal proceedings are largely low-income, face challenging language and cultural barriers, and often lack much formal education, let alone an understanding of the American legal system.[23] It is not surprising, then, that in a national study of asylum adjudications, aliens who were represented by counsel were found almost three times as likely to win their cases as those who were not represented.[24]

Under the Immigration and Nationality Act, aliens in removal proceedings have the right to counsel, though not at the expense of the government.[25] The Sixth Amendment right to appointed counsel enjoyed by criminal defendants plainly does not apply in immigration cases, which, despite their harsh consequences, are deemed civil in nature,[26] and though some courts have suggested that the Fifth Amendment may require the appointment of counsel in rare cases,[27] none has applied that principle to a case before it.[28] While some aliens have the fortune to secure free or low-cost representation through non-profit organizations, law school clinics, or private attorneys acting pro bono, these resources are slim compared to the demand.[29] Thus, for the majority of immigrants facing removal, the only way to get a lawyer is to go out and hire one.

            Unfortunately, as courts have recognized, “[t]he deficiencies of the immigration bar are well known.”[30] Lawyers miss hearings and deadlines, fail to seek relief for which their clients are eligible, and commit other errors that can lead to their clients’ deportation. Often aliens seek assistance from immigration “consultants,” some of whom are authorized under state law to assist clients in preparing and filing forms even though they lack the training, expertise, and professional safeguards of licensed attorneys.[31] In many immigrant communities, scam artists promising greencards charge exorbitant fees and file frivolous applications, leaving victims broke or, worse, detained or deported.[32] Plaguing Latino communities in particular is the phenomenon of “notario fraud,” where licensed notary publics take advantage of a translation glitch to bill themselves as competent legal service providers (“notario” in many Spanish-speaking countries means “attorney”).[33] This glaring lack of access to competent counsel has prompted the judiciary to urge the legal profession to “do more to both improve the quality of paid counsel and to expand pro bono assistance.”[34]

C.        Ineffective Assistance of Counsel Claims in Removal Proceedings: The First Thirty Years

Though aliens in removal proceedings have no Sixth Amendment right to an attorney at the government’s expense,[35] the BIA and most circuit courts of appeals for decades recognized that an alien who retains his own attorney has a right to effective assistance of counsel.[36] This right is grounded in Due Process clause of the Fifth Amendment, which provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law. . . .” When the attorney’s performance is so poor that it undermines the fundamental fairness of the proceeding and thereby prejudices the alien, the alien has been denied due process and is entitled to have his case reopened and adjudicated on the merits.[37]

In Matter of Lozada,[38] the BIA set forth a series of threshold procedural requirements that an alien needed to meet in order to succeed on an ineffective assistance of counsel claim. Under Lozada, the alien must first submit an affidavit detailing the agreement he entered into with the attorney and what the attorney did or did not represent to the alien with regards to the actions the attorney would take.[39] Second, he must inform the attorney of the allegations, allow the opportunity to respond, and submit any such response along with the motion to reopen.[40] Third, if he asserts that the attorney’s handling of the case violated ethical or legal responsibilities, he must indicate whether a complaint has been filed with appropriate disciplinary authorities, and if not, why not.[41] The purpose of these guidelines was to ensure a sufficient record to adjudicate claims and to prevent collusion between aliens and their former counsel.[42]

If the alien met these threshold requirements, the IJ or BIA would then determine whether the proceeding was rendered “so fundamentally unfair that the alien was prevented from reasonably presenting his case.”[43] Courts have found unfairness where, for example, an attorney missed the deadline to file an appeal[44] or failed to properly present the merits of an asylum claim.[45] Finally, the alien had to show that the attorney’s deficient performance caused him prejudice.[46]

Courts throughout the country applied Lozada’s guidelines for the better part of two decades.[47] Recently, however, some appellate courts began to question its constitutional foundation. In Stroe v. INS, [48]  the Seventh Circuit considered the issue in dicta. The court pointed to two earlier cases, Coleman v. Thompson and Wainwright v. Torna, in which the Supreme Court had held that criminal defendants filing discretionary appeals or seeking state post-conviction relief have no Sixth Amendment right to appointed counsel and therefore no right to effective assistance of counsel.[49] The Stroe court argued that there could likewise be no right to effective assistance of counsel in removal proceedings, where there is no right to government-appointed counsel in the first place.[50]

Notwithstanding the Seventh Circuit’s hints at overruling Lozada, the BIA held its ground. In 2001, the government’s attorneys, citing Stroe, urged the Board to reverse Lozada.[51] The government argued, like the Stroe court, that Coleman and Thompson precluded finding a right to effective assistance of counsel in removal proceedings.[52] The BIA, however, insisted on deferring to the judgments of the many circuit courts which had held, in the decade since the cases the government cited were decided, that aliens have a Fifth Amendment Due Process right to a fair immigration hearing, and that this right may be denied if counsel prevents the alien from meaningfully presenting his case.[53]

D.        Matter of Compean

i.          Overturning the Established Right to Effective Assistance of Counsel in Removal Proceedings

In 2008, the issue of effective assistance of counsel again came before the BIA. Matter of Compean,[54] involved the cases of three aliens who were ordered deported by immigration judges and moved the BIA to reopen their cases, claiming ineffective assistance of counsel. The BIA, applying Lozada, denied the motions because each alien had failed to comply with one of Lozada’s threshold procedural requirements.[55]

This time, however, Attorney General Michael Mukasey invoked a rarely used provision of the code of federal regulations to certify the case to himself for review.[56] Citing the importance of a “consistent, authoritative, nationwide interpretation of ambiguous provisions of the immigration laws,” Mukasey ordered the BIA to refer these three matters to him so that he could review the board’s position on both the constitutional question and the question of how best to resolve an alien’s claim that his removal proceeding was prejudiced by his lawyer’s errors.[57] After a brief period allowing comment by amici curiae, Mukasey issued an opinion that affirmed the BIA’s dismissal of the three aliens’ motions but abolished the test that had for decades been used to decide similar cases.[58] The decision was published on January 7, 2009, less than two weeks before Mukasey would leave office and be replaced by an appointee of the incoming Obama administration.

Mukasey announced that the Constitution does not confer a right to effective assistance of counsel in removal proceedings.[59] He explained:

The reason is simple: Under Supreme Court precedent, there is no constitutional right to effective assistance of counsel under the Due Process Clause or any other provision where—as here and as in most civil proceedings—there is no constitutional right to counsel, including Government-appointed counsel, in the first place. Therefore, although the Fifth Amendment's Due Process Clause applies in removal proceedings, as it does in any civil lawsuit or in any administrative proceeding, that Clause does not entitle an alien to effective assistance of counsel, much less the specific remedy of a second bite at the apple based on the mistakes of his own lawyer.[60]

Mukasey recognized that many courts of appeals, as well as the BIA, have held that the Due Process clause creates a right to effective assistance of counsel in removal proceedings.[61] But, he asserted, these cases rest on a “weak foundation” because they trace back to a pair of 1975 decision by the Fifth Circuit Court of Appeals in which the right was “suggested only in dictum.”[62] Moreover, since the BIA last affirmed its position in Assaad,[63] some circuits have echoed the Seventh in questioning the accepted Fifth Amendment analysis.[64]

More important to Mukasey, however, was the fact that the “distinctly perfunctory” analysis of the cases recognizing an alien’s Fifth Amendment right to effective assistance of counsel failed to show that the privately retained lawyers at issue were “state actors” for purposes of the Due Process clause.[65] This, he argued, was a fatal flaw, because the Fifth Amendment’s Due Process guarantee applies only against the Government, and the actions of private counsel therefore can only give rise to a due process claim if they can be attributed to the Government.[66] Because in civil cases there is no constitutional right to counsel, the reasoning goes, any errors made by an attorney are imputed not to the Government but to the client.[67] The sole remedy, then, is a suit for malpractice, “not a litigation do-over.”[68]

Mukasey distinguished Cuyler v. Sullivan,[69] in which the Supreme Court held that a criminal defendant’s right to effective assistance of counsel extends to privately retained attorneys. The criminal defendant’s right, Mukasey noted, was based on the Sixth Amendment’s right to counsel, which, in order to be meaningful, must refer to “adequate” (or effective) assistance of counsel, and in light of the principles of equal justice, must apply to all defendants whether they hire lawyers or have one appointed.[70] More analogous to the present case, in Mukasey’s view, were Torna[71] and Coleman,[72] two cases in which the Supreme Court denied the right to effective assistance of counsel to criminal defendants filing discretionary appeals and seeking post-conviction relief, respectively. In those cases, Mukasey explained, the Court found no right to effective assistance of counsel because the defendants had no Sixth Amendment right to appointed counsel.[73]

Finally, Mukasey rejected the argument that the an alien’s due process right to a full and fair hearing on the merits must include a specific right to effective assistance of counsel because without such a right removal proceedings would be rendered fundamentally unfair.[74] If this is correct, he argued, it would mean aliens in removal proceedings are also entitled to appointed counsel, a right which he said no court has held to exist.[75] Mukasey was not persuaded by the contention that, given the high stakes and complexity of immigration proceedings and the lack of sophistication of the aliens facing deportation, due process requires the guiding hand of competent counsel.[76]

ii.         Allowing Limited Reopening of Cases as a Matter of “Administrative Grace”

Having concluded that aliens in removal proceedings have no right to effective assistance of counsel, Mukasey nonetheless announced that aliens aggrieved by their attorneys’ poor performance may petition the government to reopen their cases as a matter of “administrative grace.”[77] In allowing this discretionary reopening, Mukasey cited strong public interests in, on the one hand, guaranteeing that a lawyer's deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings, and on the other hand, ensuring the expeditiousness and finality of these proceedings.[78] Placing the decision whether to reopen a case in the discretion of the BIA or IJ was the best way to reconcile these two competing interests.[79]

Compean lays out six threshold eligibility requirements, similar to but more demanding than those found in Lozada.[80] Under the new rule, the alien must submit to the court: (1) a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim, explaining what the lawyer did or did not do and why the alien was harmed as a result; (2) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (3) a copy of a letter to his former lawyer specifying the lawyer's deficient performance and a copy of the lawyer's response, if any; (4) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (5) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to submit previously; and (6) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence.[81] If any of these documents is unavailable, the alien must explain why, and if any is missing rather than nonexistent, the alien must summarize its contents in his affidavit.[82]

An alien who fulfills the threshold procedural requirements must then prove three elements.[83] First, he must show that his lawyer’s failings were “egregious.”[84] Second, where the alien moves to reopen beyond the applicable time limit, he must show that he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance.[85] Finally, the alien must prove that but for the attorney’s deficient performance, it is more likely than not that he would have been entitled to continue residing in the United States.[86] If the alien proves these elements, the BIA or IJ may, but is not required to, reopen the case.[87]

III.       ANALYSIS

1.         The Implications of Compean for Aliens Facing Deportation Due to Ineffective Assistance of Counsel

            Compean was met with strong criticism from the legal community. The American Civil Liberties Union charged that the decision “will have a tremendous negative impact on countless people who will be deported simply because they had the bad luck to be represented by the wrong immigration attorney,”[88] and the American Bar Association criticized it for denying immigrants “a fair shake in the courts and a chance for serious wrongs to be righted.”[89] The New York Times also called the decision “legally dubious” and urged that “[v]acating the 11th-hour strike deserves a high place on [newly appointed] Attorney General Eric Holder’s to-do list.”[90] Other organizations have similarly petitioned the new Attorney General to reconsider Compean.[91]

            Given that only three months have passed since Compean was decided, there is little published case law applying and interpreting it. Nonetheless, certain implications are clear. First, the heightened burden of proof––demanding that the alien show it is “more likely than not” that, absent the deficient performance of counsel, he would have avoided deportation––is more onerous than the standard applied previously in many jurisdictions, which have required only a “reasonable probability” that the case would have come out differently or the identification of “plausible” grounds for relief.[92]  The additional evidentiary submissions required under Compean[93] are particularly burdensome on a population characterized by limited education and English ability. Given that satisfying Lozada’s procedural requirements was often prohibitively difficult,[94] it follows that more claims will be denied for similar failings under Compean.

Further, because an adjudicator no longer must open a case that satisfies all of the elements, logic dictates that some claims that otherwise would have received consideration will now go unheard. This is especially true given the BIA’s striking tendency to find in favor of the government and its sharp increase in denials of discretionary relief in recent years.[95] Moreover, considering that huge disparities exist among immigration courts deciding whether to grant individuals asylum,[96] it is likely that the similarly discretionary decisions on motions to reopen will also vary widely from court to court and judge to judge. Finally, because the decision not to reopen a case is now left to the adjudicator’s discretion, aliens will no longer be able to challenge denials on appeal.[97]

The end result is that fewer aliens will have their claims against deportation adjudicated on the merits.  Without a chance to fight their cases in court, more people who may have otherwise been permitted to continue living and working in the United States, and whose only mistake was hiring a bad lawyer, will instead find themselves serving a “life sentence” outside of the country.[98]

2.         Why Compean is Legally Incorrect

            A close look at Compean[99] reveals a disturbingly flawed legal analysis. Contrary to Mukasey’s conclusion, the Fifth Amendment provides a right to effective assistance of counsel in removal proceedings. First, Mukasey’s statement that no court has recognized a Fifth Amendment right to appointed counsel in removal proceedings[100] is misleading. In fact, at least two appellate courts have stated that in the rare compelling case, appointed counsel might be necessary to ensure due process.[101]

            Mukasey’s suggestion that removal proceedings involve no government deprivation of a liberty interest[102] is plainly incorrect. Any individual raising a due process challenge must show that the injury suffered was caused by the state.[103] But in the case of removal proceedings, the court need not ask whether the alien’s attorney was a “state actor,” because deportation itself is a government action. The state files the charge of deportability, provides the prosecutor, presents its evidence, and attempts to convince the judge that the alien should be deported. Its goal is to deprive that alien of a substantial liberty interest long held to require due process.[104]

            Mukasey’s assertion that a right to appointed counsel – whether grounded in the Fifth or Sixth amendment – is a prerequisite to finding a due process violation for counsel’s ineffectiveness[105] is also false. A lawyer’s ineffectiveness can cause harm that would have been avoided had one chosen to represent oneself. For example, once an attorney enters his appearance, the government satisfies its notice requirement by serving all correspondence on that attorney. [106] If the attorney fails to pass the information on to the client and the client then misses a hearing date or filing deadline, the client loses any chance he would have had––however slim––at winning the case on his own. Judges can also be more forgiving with pro se litigants.[107] Whereas a judge would ordinarily leave it to counsel to raise issues counsel deems important, a judge dealing with a pro se litigant is more likely to take an active role in extracting the relevant facts and issues, potentially leading to a favorable result for that litigant.

            The statutes and regulations surrounding immigration enforcement provide further support for a right to effective assistance of counsel in removal proceedings. The Immigration and Nationality Act and regulations contain a detailed scheme that guarantee the right to counsel and fair proceedings.[108] In addition to the right to obtain counsel, aliens are guaranteed the right to a reasonable opportunity to examine the evidence, the right to present evidence, the right to cross-examine witnesses, the right to an administrative appeal, and the right to seek judicial review.[109] As the courts of appeals have recognized, ineffectiveness of counsel can make these statutory rights impossible to access and render the proceeding fundamentally unfair.[110]

Finally, Mukasey’s dismissive remark that aliens aggrieved by their attorney’s errors should seek redress by filing a civil malpractice claim shows either a misunderstanding or an indifference to the plight of these particular individuals. Aliens ordered removed are not generally permitted to reenter the United States to litigate a malpractice claim. Thus, when an attorney’s mistake results in a final removal order, the injury itself forecloses relief. Even if reentry were legally possible, litigation would be cost-prohibitive for the vast majority of the individuals aggrieved. Reopening a removal case and rehearing it on the merits is therefore the only meaningful remedy for an alien ordered deported solely because his attorney was ineffective.

3.         Recommendations

First, the federal courts of appeals should decline to follow Compean[111] and should instead, for the reasons above, conclude that aliens in removal proceedings have a right to effective assistance of counsel. While reviewing courts must give some deference to agency determinations of fact and policy, sudden changes to long-standing and complex administrative policies are normally accorded little deference.[112] Moreover, this constitutional question falls squarely within the bounds of proper federal court review.[113]

Second and related, IJs in the seven circuits where appellate courts have recognized a right to effective assistance of counsel should continue to apply that case law. Mukasey ordered the BIA and all immigration courts “to apply the framework set forth below in toto, even in circuits that have previously held that there is a constitutional right to effective assistance of counsel.”[114] Yet the BIA’s precedent requires it to acquiesce to circuit court decisions even if there is a contrary BIA decision.[115] IJs should resist confusion by Mukasey’s erroneous statement and continue to apply their circuits’ precedent.

Finally, and most importantly, new Attorney General Eric Holder should reverse Compean. Mukasey improperly reached for and decided a constitutional question that was unnecessary to resolve the case at hand, certifying Compean to himself for the sole purpose of proclaiming a new constitutional basis for the BIA’s rejection of the three respondents’ motions.[116] In doing so, Mukasey violated the established rule that adjudicators should reach constitutional questions only as a last resort.[117]

In his haste to overturn precedent, Mukasey ignored important voices that should have contributed to the discussion. Mukasey’s order indicating that he would reconsider the established rule regarding ineffective assistance of counsel, issued on August 6, 2008, was addressed only to the parties in the particular case. [118] Advocacy organizations and the private bar caught wind only after the EOIR contacted a select few organizations.[119] Advocates requested time to file amicus briefs, but Mukasey gave only a three-week extension.[120] As a result, many experts were unable to submit briefs on issues that ended up being critical to Mukasey’s analysis.[121]

The new rule, unnecessarily decided, sweeps away decades of precedent, creates confusion for the courts, and unfairly punishes aliens for the mistakes of their lawyers. These dramatic consequences make reconsideration urgent. The Constitution and years of case law from the BIA and the federal appeals courts make clear that, upon reconsideration, the correct legal conclusion is that aliens in removal proceedings have the right to effective assistance of counsel.

IV.       CONCLUSION

            Attorney General Michael Mukasey’s last-minute decision to abolish aliens’ long standing right to effective assistance of counsel in removal proceedings should be overturned. Courts and the BIA have held for decades that an alien in removal proceedings has the right to reopen his case upon showing that his attorney’s performance was so poor that it rendered the proceeding unfair in violation of the Fifth Amendment. Mukasey’s sudden reversal of this principle is legally incorrect and inflicts a significant hardship on those aliens currently entangled in removal proceedings, whose adjudicators must deal with the confusing aftereffects of this decision. It is critical that courts continue to apply their prior rule that the Constitution promises aliens effective assistance of counsel, and that new Attorney General Eric Holder take a hard look at Compean, recognize its flaws, and restore the correct rule.