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Seventh Circuit Finds No Right to Effective Assistance of Counsel in Removal Proceedings but Admonishes Errant Attorney
by Carl R. Baldwin

In a decision dated June 26, 2001, Angela Stroe and Marin Stroe v. Immigration and Naturalization Service, No. 00-2934, the court held that there was no constitutional or statutory right to the effective assistance of counsel in removal proceedings, but expressed dismay at the failure of a lawyer to comply with a Board of Immigration Appeals deadline and will forward its decision to the appropriate Disciplinary Commission.

The procedural facts are simple enough. An immigration judge found the Stroes removable and ineligible for asylum. Their lawyer appealed to the Board of Immigration Appeals, and asked for an additional 30 or 60 days to file a brief. The Board granted an extension of 30 days. Their lawyer did not comply with that deadline, and in fact did not file the brief for another three months. On the basis of the failure to file the brief timely, the Board dismissed the appeal. With a new lawyer, the petitioners moved the Board to reopen the case and decide the appeal, but the motion was denied. Hence the appeal to the Circuit.

The petitioners argued that the Board denied them due process by having dismissed the appeal without having first advised them that this could be the consequence of an untimely filing The court found that this argument “borders on the frivolous.” It stated: “An appellant’s failure to file a brief is a serious procedural default, and, at least where the appellant is represented by an attorney…dismissal is an appropriate sanction” (citing decisions from several different circuits in support).

The petitioners also argued that their motion should have been granted because their initial lawyer, in flouting the Board’s deadline, gave them ineffective assistance. According to the court: “The parties do not discuss the source or nature of a right to effective counsel in deportation proceedings.” The court had expressly left that question open in Chowdhury v. Ashcroft, 241 F.3d 848, 854, because in that case it decided that the Board erred at the administrative level and ordered a remand. The court cites a number of cases from various circuits where the right to effective assistance is “assumed,” but says that, except for one case which reversed denial of relief on this ground, the statements in the cases were dicta.

The court observed that the right to effective assistance assumed in the cases cited was “limited to situations in which the denial of effective counsel results in a denial of due process.” The court opines that this right “stands on weak ground.” Deportation proceedings are civil, not criminal, and “the general rule, certainly, is that civil litigants have no constitutional right to the assistance of counsel.” As in other civil proceedings, the immigrant has the right to hire a lawyer, but that “gives him no right to complain if the lawyer he hires is ineffective.”

The court notes the Board’s decision that ineffective assistance of counsel is a valid ground for reopening in “egregious circumstances.” In re Lozada, 19 I& N 637 (BIA), aff’d 857 F.2d 10 (1st Cir. 1988). The court appears to have misgivings about that decision: “The Board’s failure to give any reason for the decision troubles us, however; we worry that the Board may not be cognizant of the relevant precedents governing the right of counsel in civil cases.”

With these considerations, and in light of the initial lawyer’s flagrant violation of the Board’s deadline, the court affirmed the Board’s denial of the motion to reopen, and went on to express its disapproval of the lawyer’s failure to act. It states in conclusion: “We shall send a copy of our opinion to the Illinois Attorney Registration and Disciplinary Commission for appropriate action.”

The case is a depressing reminder that a lawyer’s carelessness can pave the way to an alien’s removal.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from