now it’s much harder for immigrants to challenge deportation with an ineffective assistance claim

Posted in Uncategorized by Ryan Locke on January 11, 2009

says Ryan.

This past Wednesday, Attorney General Mukasey ruled that aliens may no longer challenge their deportation hearings with an ineffective assistance of counsel claim except in “extraordinary cases.”  This order, binding on immigration courts and the Board of Immigration Appeals, overrules a 1988 precedent when it holds:

Although the Constitution does not entitle an alien to relief for his lawyer’s mistakes, I conclude that the Department may, in its discretion, allow an alien to reopen removal proceedings based on the deficient performance of his lawyer….In extraordinary cases, where a lawyer’s deficient performance likely changed the outcome of an alien’s removal proceedings, the Board may reopen those proceedings notwithstanding the absence of a constitutional right to such relief (emphasis original).

That doesn’t seem so bad, right?  Well…

Here’s what’s up.  Ineffective assistance of counsel is basically a legal malpractice claim.  A criminal defendant asserts that but for the lawyer failing to properly defend his case, he never would have been convicted.  It grows out of the Fifth Amendment guarantee of due process.

In Matter of Lozada, a 1988 order from the Board of Immigration Appeals (which is the appeal board for cases from immigration courts — this is all in the Executive Office for Immigration Review within the Department of Justice).  Anyway, the order set out a framework for asserting an ineffective assistance claim:

  1. File an affidavit from the aggrieved respondent alleging the relevant facts
  2. Detail the agreement between the respondent and the alleged ineffective attorney, making clear what counsel agreed to do or not do
  3. Inform the alleged ineffective attorney of your allegations and allow him an opportunity to respond
  4. Submit to the Board any communication from the attorney to you regarding the ineffective assistance claim
  5. If the attorney violated any legal or ethical obligations, report him to the Bar or say why you haven’t

So you have to do a lot of stuff, but you’re at least you’re guaranteed the ability to argue an ineffective assistance claim.  But then comes AG Mukasey’s order.

The order isn’t really out of the blue — it actually stems from a problem in Matter of Lozada.  When the Board released that decision, they didn’t really justify why an alien should be able to assert an ineffective assistance claim.  The Board realized this 15 years later in Matter of Assaad, but declined to overrule Matter of Lozada because the circuit courts were all recognizing that an alien has a Fifth Amendment due process right to a fair hearing — another way of saying that aliens could assert an ineffective assistance claim.

So fast forward five years to today.  In the interm, the circuit courts have fallen into discord regarding if and when an alien can assert an ineffective assistance claim.  The Eighth, Seventh, and Fourth Circuits no longer hold that an alien has this right, and the 5th Circuit has suggested the same in dictum.  This means that if you’re an alien whose removal case was heard in the immigration court in Atlanta then you could assert ineffective assistance, but if your case was heard in Chicago then you couldn’t.

Because of this situation, Mukasey steps in to review the DOJ’s policy.  He agrees with the minority of circuits that the Constituion does not confer a constitutional right to effective assistace of counsel in removal proceedings.  Here’s why:

  1. There is no right to counsel in removal proceedings (as in most civil proceedings).
  2. Thus, although the Fifth Amendment due process clause applies to removal proceedings (like it does to any administrative proceeding), it does not entitle aliens to lawyers.
  3. If you don’t have a constitutional right to counsel, then your due process rights can’t be violated if your counsel is ineffective.

Bam, Matter of Lozada superceded!  But remember that Muskasey is merely defining the floor, or the least amounts of rights immigration courts have to give to aliens and still remain constitutional.  The DOJ can still choose to give rights to aliens, even if they don’t have to.  So that’s what Muskasey does.

First, an alien has the burden of establishing these things:

  1. that his lawyer’s failings were egregious
  2. that in cases where the alien moves to reopen beyond the applicable time limit, he exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance
  3. that he suffered prejudice from the lawyer’s errors, namely that but for the deficient performance, it is more likely than not that the alien would have been entitled to the ultimate relief he was seeking

Second, the alien must produce these things:

  1. a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel cliam
  2. a copy of the agreement, if any, with the lawyer whose performance he alleges was deficient
  3. a copy of the 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
  6. a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence

So now the bar is significantly higher for aliens to challenge deportation with an ineffective assistance claim.  The problem is that aliens are most likely to suffer from ineffective counsel because:

  1. Immigration law is a complex administrative area that requires a specialized lawyer to grasp.
  2. If you miss a deadline, you’re likely screwed.
  3. It’s easy to miss a deadline.
  4. The burden is on the alien to show why he should be allowed to stay, so the attorney has to produce evidence to that effect.
  5. That evidence might be in places hard to reach — if the alien is asserting that he’ll be tortured because of his religion if he goes back to China, how are you going to find evidence of that?  Going to China?
  6. Many aliens don’t have lots of money to hire a lawyer, so they’ll go for bargain basement lawyers.  Bargain basement lawyers often are not the best lawyers.
  7. If the first lawyer really screws up, the alien might not even know.  Is the lawyer going to tell him?  The process is confusing enough for an educated native English speaker.  Imagine how difficult it is if you’re neither of those things.
  8. Even if the alien realizes that it’s the lawyer’s fault, will that alien have enough money to hire a second lawyer? (See number 6 above).

Of course, this order could be short-lived.  We’ll see what happens with it in the coming months under the new Attorney General.


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