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Ineffective Assistance Of Counsel In Removal Proceedings - Matter Of Compean And The Fundamental Fairness Doctrine

by Jean Pierre Espinoza

Note: This Article originally appeared in the Florida Journal of International Law, Vol. 22, No. 101, 2010 as "Ineffective Assistance of Counsel in Removal Proceedings: Matter of Compean and the Fundamental Fairness Doctrine" (March 25, 2010). Reprinted with permission. [added 4/29/10]

"Ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case."1


The complexity of immigration law and the deportation process emphasizes the need for counsel in removal proceedings.2 When the laws and procedures are complex and confusing there is a greater need for counsel in order to ensure a just outcome and a fair process.3 Indeed, even the immigration courts have recognized that immigration law is a complex law field and its practice can be challenging and confusing.4

Most immigrants facing removal proceedings lack legal representation.5 Although criminal defendants and individuals in certain civil proceedings enjoy a right to appointed counsel, immigrants in removal proceedings do not. The Immigration and Nationality Act of 1952 (INA) set forth that aliens have the right to counsel but not at the expense of the government.6 Although, in theory, courts have recognized that government-funded counsel might be required, courts have uniformly refused to appoint government-funded counsel even in cases where the immigrant is indigent.7 Despite this controversy, eight of eleven federal circuits have sustained the constitutional right for effective assistance of counsel.8 Indeed, these courts applied a substantive and procedural framework for establishing an administrative claim of deficient performance of counsel.9

On August 7, 2008, during the waning days of the Bush Administration, Attorney General Michael Mukasey directed the Board of Immigration Appeals (BIA) to defer to him for review in its decisions in three cases: Matter of Compean, Matter of Bangaly, and Matter of J.E.C. (Jorge Enrique Cortes-Montanez).10 In each case, the respondent claimed ineffective assistance of counsel and requested the BIA to reopen their case due to the mistakes of their former attorney.11

When the Law Offices of Robert J. Jacobs was served with the Attorney General Mukasey's order requesting the BIA to refer the Matter of Jorge Enrique Cortes-Montanez (aka Matter of J.E.C.) to him, no one expected that Attorney General Mukasey would issue a decision ruling that "[a]ccordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. (one of the most common avenues for appealing deportation decisions) and consequently overrule Matter of Assaad and Matter of Lozada.12 Attorney General Mukasey created a new framework for reopening cases based on claims of ineffective assistance of counsel. His decision raised the burden of proof, affording relief only in extraordinary cases where the immigrant can prove the mistake is "egregious" and "likely changed the outcome" of the case.13

The Attorney General's order caused different institutions to raise their voices in complaint of his decision.14 Many immigration attorneys not only disagreed with the core of the decision, but also with the fact that Attorney General Mukasey's decision came out "in the twilight" of his tenure as Attorney General, usurping from the new administration the opportunity to render a judgment affirming that aliens in removal proceedings deserve constitutional protection.15

However, other attorneys agreed with Attorney General Mukasey that the Fifth Amendment does not warrant a right of "effective assistance of counsel" from private attorneys.16 Other practitioners believed the Attorney General's decision was not a "dramatic or radical reshaping of the rules governing immigration appeals"17 Other immigration experts found Compean's framework test very similar to the one applied already by many circuit courts because, in order to reopen a case based on ineffective assistance of counsel, most judges already request the petitioner to show a relation between the private counsel's error and the ultimate relief requested.18 Finally, a minority of attorneys believed the Compean framework test to be better than the Lozada test in some aspects. For example, Compean did not require the petitioner to file a claim with the bar association against the former counsel but left the option to complain in the discretion of the BIA.19

The varying opinions on ineffective assistance of counsel claims for immigrants leave numerous issues to be resolved. What rights (constitutional and statutory) do immigrants have when they suffer from ineffective assistance of counsel? Moreover, what is the negative effect on immigration processes when an immigrant is receives inadequately representation? Finally, what should be the new framework that the Director of the Executive Office for Immigration Review (EOIR) proposes to Attorney General Holder as a final rule?

The circuits are divided on these issues and therefore this Note will analyze whether appointed counsel and the claim of ineffective assistance of counsel warrant protection under the Fifth and Sixth Amendment. This Note will also consider whether appointing counsel to immigrants would affect the outcome of immigration proceedings. Part II in particular analyzes the Sixth Amendment and the labeling of removal proceedings as "civil in nature," which would bar immigrants from obtaining government appointed counsel. Part III analyzes the Fifth Amendment and due process rights in cases related to ineffective assistance of counsel, Attorney General Mukasey's decision in Matter of Compean and Attorney General Holder's decision vacating Matter of Compean. Part IV analyzes a tentative right of adequate representation under the Immigration and Nationality Act and the Fundamental Fairness Doctrine and Part V will analyze the issues in Matter of Compean.


In the very first paragraph of Matter of Compean, Attorney General Mukasey reaffirmed the old view that aliens in removal proceedings have no right to counsel under the Sixth Amendment because "the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature"20 Regardless of the judiciary's recognition of deportation as a "drastic sanction" which can destroy lives and disrupt families21 and the label of deportation as quasi-criminal by many scholars, the Supreme Court has held repeatedly that deportation proceedings are civil rather than criminal in nature.22

The view that removal proceedings are civil and not criminal in nature derives from the Supreme Court‘s decision in Chae Chan Ping v. United States (also known as the Chinese Exclusion case).23 In Fong Yue Ting,24 a few years after the Chinese Exclusion case, the Court held that the civil designation of removal proceedings applied not only to exclusion cases but also to expulsion cases.25 The majority in Fong Yue Ting focused on the argument that the power to expel a non-citizen was a power inherent in the sovereignty of the country. The dispute between the majority opinion and the dissenters26 concerned the nature of "sovereign power" and whether that power was civil or criminal. The majority concluded that, in contrast to banishment, expulsion is not a criminal punishment.27

Justice Brewer strongly opposed the decision in his dissent,28 arguing that29 removal "deprives them of liberty, and imposes punishment, without due process of law"30 Justice Brewer also argued that there is a difference between non-citizens "touching the door" and non-citizens residing already within the United States. He called the latter "denizens"31 and considered them to be in a "middle state between an alien and a native"32 Justice Brewer equated expulsion with the criminal punishment of banishment from the United States.33 Thus, his argument essentially claimed that non-citizen residents should not be subject to such punishment without the application of full constitutional criminal protection.34

Years after Fong Yue Ting, courts still rely on the "civil" label of removal proceedings and refuse to discuss whether removal proceedings are civil or criminal in nature, even in cases in which a violation of criminal laws triggers expulsion.35

The "difference between exclusion and deportation concerns the potential magnitude of the individual interest at stake"36 Peter L. Markowitz, in his article Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, concludes that it was a substantial error from the Supreme Court to assign the civil designation to expulsion proceedings.37 Markowitz's bifurcation approach argues that determining whether to exclude a non-citizen asking for admission is a civil proceeding, but removing a non-citizen that is lawfully in the country, is criminal in nature.38 Markowitz's research concludes that there is a misconception of two different situations, on one hand exclusion and on the other hand expulsion.39 Markowitz concludes in his analysis that to treat both "exclusion" and "expulsion" as the same crime represents flawed analysis.40

The validity of the Court's holding in Fong Yue Ting has not been reexamined. Markowitz suggests a "three lenses" approach, which includes: (1) examination of the rationale in Fong Yue Ting, (2) a historical analysis of expulsion and exclusion, and (3) application of the Supreme Court's current test for evaluation of the civil or criminal nature of the proceedings.41 In his article, Markowitz rationalizes that in England, the root of U.S. law, banishment is recognized and used as a criminal punishment.42 Indeed, in colonial America banishment served as the only mechanism to expel persons from the colonies.43 Markowitz's most persuasive argument is that contemporary civil-criminal tests applied by the high courts of most countries establish a division between exclusion and expulsion.44

Markowitz's argument is not only that criminal law is related to public offenses against society while civil law is related to private disputes between individuals, but also that the INA contains numerous criminal grounds of removability and most of them are related to criminal convictions. Thus, in the majority of expulsion cases, the sanctioned behavior is "per se" criminal, and even in those rare instances where expulsion does not originate from a criminal conviction, the sanctioned conduct is "almost always" punishable under criminal law.45

One of the main differences in treating a matter as criminal rather than civil is the protection of the Sixth Amendment and the right of appointed counsel. The Sixth Amendment establishes that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.46

The right to appointed counsel usually applies in the criminal context or in hybrid contexts, such as juvenile adjudications and probation cases.47 The label of deportation as purely civil may be eroding. For example, the Third Circuit recently noted that although the Sixth Amendment does not apply in immigration proceedings, "[n]evertheless, we cannot treat immigration proceedings like everyday civil proceedings . . . because unlike in everyday civil proceedings, the liberty of an individual is at stake in deportation proceedings"48

The Sixth Circuit presciently observed more than twenty years ago that the distinction between criminal cases and civil proceedings, such as deportation, is outmoded. The court reasoned, "where an unrepresented indigent alien would require counsel to present his position adequately to an immigration judge, he must be provided with a lawyer at Government's expense. Otherwise fundamental fairness would be violated"49

The case commonly cited in this context for the assertion that deportation is civil, not criminal, is INS v. Lopez-Mendoza.51 Lopez-Mendoza was decided before IIRIRA51 adopted the current requirements for mandatory and indefinite detention, detention of asylum-seekers who pass a credible-fear interview, and before the expanded reach of aggravated felony and narrowing of relief made deportation52 essentially inevitable even for immigrants with minor infractions.53

Judge Diane Wood of the Seventh Circuit voiced such a sentiment in her concurrence in Stroe v. INS, noting, "[t]he labels 'civil' and 'criminal' for cases are imprecise . . . . [T]here are many areas of federal law where this distinction becomes blurred. Habeas corpus is one, civil forfeitures in conjunction with criminal prosecutions are another, and immigration cases may well be a third"54 In the immigration context, the argument rests on the obviously significant fact that the alien could face removal from the United States based on the outcome of the proceeding and the consequences of removal are evidently different from a typical civil proceeding.

Some advocates believe immigrants in asylum cases deserve special treatment and appointed representation in order to ensure access to asylum relief. They rely on the U.S. status as a signatory of the International Covenant on Civil and Political Rights (ICPR),55 the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol,56 and the Convention Against Torture.57 The ICPR provides that any alien lawfully present in a territory of a party to the convention may face expulsion "only in pursuance of a decision reached in accordance with law" and shall be allowed "to submit the reasons against his expulsion" and "be represented for the purpose before, the competent authority"58 According to some authors, the mandatory nature of the treaty obligations is clear and the aliens lawfully present in the United States have the right to counsel in removal proceedings.59

Although Judge Diane Wood and other judges and scholars are correct that removal proceedings are not civil in nature but "hybrid," opening the door to the option of providing government-appointed representation for people unable to obtain private representation, the reality is that courts consider removal as civil in nature. Thus, there are no rights under the Sixth Amendment.


The Fifth Amendment of the U.S. Constitution protects against abuse of government authority in legal procedures.60 The Fifth Amendment establishes that:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.61

In Matter of Compean, Attorney General Mukasey stated that although the Due Process Clause of the Fifth Amendment applies to removal proceedings, the guarantee of due process does not include a general right to counsel or specific right to effective assistance of counsel.62 Mukasey's argument essentially stated that the guarantee of due process does not include (1) a general right to counsel or (2) a specific right to effective assistance of counsel. Mukasey analogized his position to those already taken by the Fourth, Fifth, Seventh, and Eighth Circuits,63 arguing that in order to find a Fifth Amendment violation there must be some state action, and "lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes"64 However, Matter of Compean was arguably against the position taken by the majority of other federal courts, which affirmed long ago that non-citizens have the constitutional right under the Fifth Amendment due process clause to fundamentally fair removal.65 Because of the circuit split, it is extremely important to consider which position makes more sense and is more equitable in this situation.66

A. Matter of Lozada

Lozada was a lawful permanent resident (LPR) found deportable following his conviction of a crime involving moral turpitude (CIMT).67 At his deportation hearing, Lozada applied for relief under former INA 212(c)68 and, alternatively, for voluntary departure. Exercising his discretion the Immigration Judge denied the 212(c) discretionary waiver and held Lozada statutorily ineligible for voluntary departure because of his criminal conviction.69 Lozada appealed to the BIA.70 The BIA ordered summary dismissal.71 After one year of the denial and with new counsel, Lozada petitioned the BIA to reopen his removal proceedings alleging ineffective assistance of counsel because his former counsel had (1) inadequately specified the grounds for appeal in the notice to appeal and (2) failed to file the promised appellate brief.72 In its decision, the BIA held that "ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case"73 The BIA established a test, now known as the "Lozada test,"74 to determine whether ineffective assistance of counsel in deportation proceedings denies an immigrant of due process. According to the Lozada test, to support a claim of ineffective assistance of counsel an aggrieved party must: (1) submit an affidavit setting forth in detail the agreement entered into with counsel regarding the person's representation, (2) present evidence that counsel was informed of the allegations of ineffective assistance and given an opportunity to respond, and (3) either show that a complaint against counsel was filed with the proper disciplinary authorities or explain why no such complaint was filed.75 Matter of Lozada is the leading administrative decision governing ineffective assistance of counsel claims in immigration law proceedings.

B. In re Bassel Nabih Assaad (Matter of Assaad)

Assaad was a native and citizen of Syria who entered the United States in 1993 as a nonimmigrant visitor.76 He received conditional permanent resident status based on his marriage to a U.S. citizen.77 The government instituted removal proceedings following the termination of his status.78 During removal proceedings, the respondent applied for a waiver under section 216(c)(4)(B) of the INA79 to remove the conditional permanent resident status.80 The Immigration Judge (IJ) denied the waiver, reasoning that respondent submitted limited evidence to prove that the marriage was "bona fide," and that the respondent in the hearing showed little knowledge about his wife.81 The IJ ordered removal of the respondent from the United States.82 Assaad's attorney reserved appeal in the hearing but he submitted the appeal one week too late.83 Assaad's new counsel sought reopening for the IJ to reissue his decision in order to file a timely appeal.

The Immigration and Naturalization Service (INS)84 argued that Matter of Lozada conflicted with the Supreme Court decisions in Wainwright v. Torna85 and Coleman v. Thompson.86 In light of Coleman and Wainwright, the INS requested the BIA to reconsider and overturn Matter of Lozada holding that "a claim of ineffective assistance of counsel cannot amount to a constitutional violation in immigration proceedings, where there is a constitutional right to appointed counsel"87

The BIA was not persuaded by the INS's arguments and declined to overrule Matter of Lozada.88 The BIA stated, "any right to counsel a respondent may have in immigration proceedings is grounded in the Fifth Amendment guarantee of due process"89 The BIA held also that ineffective assistance of counsel is a denial of due process "only if the proceedings were so fundamentally unfair that the alien was prevented from reasonably presenting his or her case".90

The BIA set forth a high standard by which to consider exercising its limited certification authority in a case where attorney malfeasance has occurred, clarifying that it is not a general cure for filing defects or to otherwise circumvent the regulations.91 As a result of this jurisprudence, the BIA held that "the principle that aliens may have a valid claim of ineffective assistance of counsel if an attorney's action were so deficient as to foreclose the fundamental fairness of the proceedings is settled law. in the majority of the circuits and should be viewed as the controlling law.92

C. Matter of Compean

On August 7, 2008, Attorney General Mukasey directed the BIA to refer to him for review its decisions in Matter of Compean,93 Matter of Bangaly,94 and Matter of J.E.C.95 Mukasey affirmed the BIA's orders denying reopening in those cases and overruled the BIA's decisions in Matter of Lozada, and Matter of Assaad, to the extent those decisions were inconsistent with the legal conclusions and administrative framework set forth in Compean.96

According to former Attorney General Mukasey, under Supreme Court precedent, "there is no constitutional right to effective assistance of counsel under the Due Process Clause or any other provision where . . . there is no constitutional right to counsel," including government-appointed counsel.97 Thus, under this logic, although the Fifth Amendment's Due Process Clause applies in removal proceedings as it does in any civil lawsuit or administrative proceeding, the due process 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"98 According to Attorney General Mukasey, the Fifth Amendment's due process guarantee applies only to the decisions of persons who represent the Government.99

The question presented in these cases, therefore, was whether the conduct of a privately retained lawyer can be attributed to the government for Due Process Clause purposes such that a litigant has a general right to due process with respect to state action, including a specific right to effective representation by that private lawyer. Attorney General Mukasey recognized the circuit split on this matter. Additionally, he acknowledged that not all circuits apply the framework established in Matter of Lozada.100 Some circuits have created easier standards while others have denied the right of reopening a case based on ineffective assistance of counsel.101

Attorney General Mukasey found the cases that BIA has accepted as supporting a potential Fifth Amendment right to effective assistance of counsel in removal proceedings rest on a weak foundation.102 Relying on Afanwi v. Mukasey,103 Mukasey found the cases acknowledging a constitutional right to effective assistance of counsel in removal proceedings "trace back to a pair of 1975 decisions by the United States Court of Appeals for the Fifth Circuit, Barthold v. INS,104 and Paul v. INS,105 neither of which actually held that such a right exists".106

D. Afanwi v. Mukasey

On May 19, 2008, the Fourth Circuit held that an immigrant was foreclosed from arguing that ineffective assistance of counsel deprived him or her of a right to due process because immigrants do not possess a constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately-retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment.107 Joseph Afanwi applied for asylum, withholding of removal and protection under the regulations implementing the Convention Against Torture; both the immigration officer and the IJ found Afanwi not credible.108

Although Afanwi appealed the IJ decision to the BIA, it dismissed his appeal.109 The BIA mailed a copy of its decision to the provided address of Afanwies counsel, but before the BIA rendered its decision, his counsel moved locations.110 Thus, it was after the thirty-day deadline had passed for filing a petition for review with the Fourth Circuit that Afanwi became aware of the BIA's dismissal.111 Alleging ineffective assistance of counsel, Afanwi filed a motion to reopen the case with the BIA and was denied.112

In addressing Afanwi's ineffective assistance of counsel claim, the Fourth Circuit reiterated, "removal proceedings are civil in nature, not criminal. It is equally well settled . . . aliens facing removal are not entitled to the Sixth Amendment's right to counsel"113 The Court held that aliens do possess a statutory right to retain counsel and a constitutional right to due process.114 The sole issue became whether the Fifth Amendment's guarantee of due process supports a constitutional right to effective assistance of counsel. Although the majority of appellate courts have found a due process violation in ineffective assistance of counsel,115 the Fourth Circuit ruled to the contrary, holding that "retained counsel's ineffectiveness in a removal proceeding cannot deprive an alien of his Fifth Amendment right to a fundamentally fair hearing."116

Having found only a right to retain counsel, the question remained as to whether there was a sufficient nexus between the actions of privately retained counsel, which the government has no obligation to provide, and the state (meaning the government).117 The Court held that if there was no significant nexus between the state and private counsel then there could be no constitutional violation, as the Fifth Amendment applies solely against the government.118 Applying these traditional principles to the alien's claim of ineffective assistance of counsel, the court held that a privately retained counsel acting in an immigration proceeding is not a "state actor," nor is there a sufficient nexus between such counsel and the government to justify imputing counsel's actions to the government for constitutional purposes.119

Summarizing what the Fourth Circuit held, Afanwi's counsel was privately retained and his alleged ineffectiveness-namely his failure to check his mailbox regularly and to file a timely appeal-was a purely private act. Therefore, the federal government was under "no obligation to provide Afanwi with legal representation, and there was no connection between the federal government and counsel's failure to check his mail . . . [and] Afanwi's counsel's actions do not implicate the Fifth Amendment, and accordingly counsel's alleged ineffectiveness did not deprive Afanwi of due process."120

In Matter of Compean, the underlying rationale of Attorney General Mukasey's decision-that is, where there is no constitutional right to counsel and no obligation on the part of the government to provide counsel there cannot be a constitutional violation if privately retained counsel performs ineffectively-is commensurate with the Supreme Court's decisions in Coleman and Wainwright and therefore, there is no right to "good" counsel.121

E. Matter of Compean's Framework

In Matter of Compean, Attorney General Mukasey stated that although immigrants do not have the right to effective assistance of counsel in removal proceedings, they do have a remedy when they are affected by the mistakes of their attorneys because the Department of Justice (DOJ) is not limited to the Constitutiones demands.122 Although relief is not available, the DOJ may, in its discretion, allow an alien to reopen removal proceedings based on the deficient performance of his lawyer.123

Balancing the strong public interest in the fairness and accuracy of removal proceedings with the equally strong public interest in the finality of competition of the proceedings, Mukasey established an administrative framework for the exercise of that discretion.124 Mukasey held that in extraordinary situations, such as when the poor performance of the attorney changes the outcome of the removal proceedings, the Board may reopen the case.125

Mukasey stated that reopening "removal proceedings on the basis of a lawyer's deficient performance is a permissible exercise of this broad discretion"1266 Mukasey found it reasonable for the Board to exercise its discretion based on the complex nature of immigration law and proceedings, noting that it is better for an immigrant to face removal proceedings while represented by an attorney.127

Mukasey recognized that there is a strong public interest in ensuring that attorney mistakes do not undermine the fairness of removal proceedings.128 However, Mukasey argued that, as noted by the Supreme Court, granting motions to reopen "too freely" may permit creative immigrants to endlessly delay their cases by establishing a prima facie case for ineffective assistance.129 In particular, Mukasey found that:

[t]his concern is particularly strong when an alien seeks reopening on the basis of a lawyer's alleged deficient performance because even a meritless motion can succeed in tying up the system and postponing an alienes removal for months or even years based on the difficulties inherent in assessing and adjudicating a lawyer's performance after the fact.130

Mukasey also argued that federal courts have observed increasing claims of attorney mistakes and have condemned the dilatory claims often submitted to IJ and the BIA.131

Mukasey argued that it is within his discretion to determine how the motions to reopen will be handled132 and through Matter of Compean he exercised his discretion by identifying the general criteria to be used by the BIA and the IJ's.133 Mukasey also recognized that the BIA and the IJ's retained considerable discretion to determining in which cases the record compels a finding that the ineffective assistance of counsel amounts to the reopening of the case.134

Attorney General Mukasey established in Compean a new framework. To avoid confusion with the Lozada test, he named the test recognized in Compean as a "deficient performance of counsel" test.135 Mukasey argued that the Lozada standards and requirements have prevailed but two decades of experience has revealed ways they can and should be improved. Mukasey established that in order to prevail on a deficient performance of counsel claim, an alien bears the burden of establishing three elements:

"First, the alien must show that his lawyer's failings were 'egregious,' a requirement the Board recognized in Lozada"136 Mukasey held it was not enough to just demonstrate an ordinary mistake; the error made by the attorney must be extraordinary.137 Mukasey also argued that it is appropriate to presume that the attorney's performance falls within the wide range of reasonable professional assistance.138 According to Mukasey:

[R]equiring that the error be "egregious," and viewing the matter from counsel's perspective at the time, will help ensure that the reopening is reserved for those extraordinary cases that truly warrant relief, and that relief is not granted simply because an alien shows after the fact that he received less than flawless representation.139

"Second, in cases where the alien moves to reopen beyond the applicable time limit" the immigrant must show due diligence. 140 The law establishes that a motion to reopen must be filed within 90 days from the removal order entered by the IJ. This requirement of due diligence requires that the immigrant takes prompt action as soon as he or she discovers the attorney's mistake.141

Third, an alien must establish prejudice arising from the lawyer's errors.142 The proper standard of prejudice to apply is an important question, and one on which the courts of appeals are split.143 For Mukasey, the "more likely than not" standard best reflects and protects the strong public interest in ensuring the finality of removal proceedings while still providing an option for those cases in which an alien can demonstrate the harm caused by his attorney's egregious performance.144 Thus, to prevail, a petitioner must show that "but for the lawyer's failing," he likely would have not been removed from the United States.145

Matter of Compean established that the alien must attach his affidavit plus five documents or sets of documents to his motion for a valid claim:146

First, the alien must attach a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient. Where there was no written agreement, the alien must specify in his affidavit what the lawyer had agreed to do, including whether it included the particular step in the proceedings in which the deficient performance is alleged to have occurred.147

Second, the alien must attach both a copy of a letter to his former lawyer setting forth the lawyer‘s deficient performance and a copy of the lawyer‘s response, if any . . . The letter from the alien must suffice to put the lawyer on notice that the alien intends to file a deficient performance claim and to inform the lawyer of the facts that the alien alleges in support of the claim.148
Third, the alien must attach a completed and signed complaint addressed to the appropriate State bar or disciplinary authorities.149

Fourth, if the alien's claim is that his former lawyer failed to submit something to the immigration judge or to the Board, he must attach the allegedly omitted item to his motion . . . moreover, the alien must explain in his affidavit whether he told his former lawyer about the evidence or testimony in question, and if not, why not.150

Fifth and finally, where an alien is represented by counsel in seeking reopening, the motion for reopening shall contain the following signed statement of the new attorney: "Having reviewed the record, I express a belief, based on a reasoned and studied professional judgment that the performance of my client's former counsel fell below minimal standards of professional competence"151

F. Attorney General Holder's Decision Vacating Matter of Compean

On June 3, 2009, Attorney General Holder vacated the decision in Matter of Compean, Bangaly & J.E.C., and "pending the outcome of a rulemaking process, directed the Board of Immigration Appeals and the Immigration Judge's to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel"152 Attorney General Holder also restated the importance of an appropriate framework for reopening a case based on a claim of ineffective assistance of counsel.153

Holder agreed that an ideal framework reforming Lozada would grant all the interested parties the option to participate in its creation.154 Based on this analysis, Holder directed the Acting Director of the Executive Office for Immigration Review to evaluate the Lozada framework and to propose modifications for public consideration.155

Holder held that, in the meantime, the Board and IJ's should apply the pre-Compean standards.156 Holder also ordered that "[t]he litigating positions of the Department of Justice will remain unaffected by this Order"157

Finally, Holder temporarily decided an issue not decided prior to Compean. The BIA had not yet resolved whether its discretion to reopen removal proceedings includes the power to consider claims of ineffective assistance of counsel based on conduct of counsel that occurred after BIA entered a final order of removal. Holder resolved this issue by granting the Board the discretion this discretion.158


Many courts have found that the right to claim ineffective assistance of counsel comes from the relationship between the statutory right to retain counsel in immigration proceedings and the due process clause. The Constitution guarantees aliens the right to due process, whether they are present in the United States legally or illegally, and this constitutional right extends to aliens in removal proceedings. The due process right has to be weighed in conjunction with the non-constitutional right to retain counsel guaranteed by the INA.

The INA guarantees aliens the right to representation by counsel of their choosing in the course of their proceedings at no expense to the government.159 The INA also guarantees aliens representation of their own choosing and at their own cost, if the alien so desires.160 The INA and the regulations affirm the necessity of counsel. The government not only has to inform the immigrants of the right to private counsel but must also provide them with a list of free legal immigration services.161 For some advocates, the necessity that counsel be competent flows from the INA and its regulatory scheme, which emphasizes counsel‘s central role in obtaining a fair hearing.162 Thus, the statute guarantees a fair hearing and incompetent counsel abrogates those rights.163

Under Marshall's argument in Wainwright,164 the case used by most of the circuits to support an argument for the right to reopen based on ineffective assistance of counsel in immigration matters,165 the manner in which the government uses the "removal apparatus. created by the government to detain and remove aliens merits the protection from a potential abuse of fundamental rights. When the removal is obtained in a process tainted by ineffective assistance of counsel, the government has denied a constitutional right and the alien is protected under the Fifth Amendment.166

The INA, the BIA, applicable regulations, and circuit case law all provide full measures of non-constitutional law regarding the central role of counsel and the proper remedy if counsel is ineffective. This body of law provides a remedy for ineffective counsel independent of any constitutional right to such a remedy.

In its amici curiae brief, the American Immigration Law Foundation (AILF) introduced an interesting argument regarding waiver of statutory rights by counsel. Errors by incompetent counsel have the effect of waiving a client's statutory rights without the client's knowledge that he or she is relinquishing those rights.167 These rights are personal to the client; they are not the representative's rights.168 Therefore, when an incompetent representative waives, relinquishes or voids these rights, the respondent has not knowingly and intelligently waived his or her rights.169

There is a presumption against such an abandonment of rights in the civil as well as in the criminal context.170 In United States v. Mendoza-Lopez, the government did not dispute the violation of respondent's due process rights by the IJ's failure to adequately explain the right to suspension of deportation or the right to appeal.171 The Court observed that the IJ permitted waiver of the right to appeal when it was not the result of considered or intelligent judgments by the respondents.172

In United States v. Jimenez-Marmolejo, one attorney represented four unrelated respondents in deportation proceedings.173 When the IJ asked whether "either side" wanted to appeal the judge's order of deportation, the attorney declined.174 The government argued that a waiver of appeal by counsel is presumptively a knowing and intelligent waiver by the client.175 The court held to the contrary, citing Mendoza-Lopez and United States v. Proa-Tovar.176 It is well-established that if an immigrant looses an opportunity to be heard in court, to file relevant evidence, or to appeal a decision due to ineffectiveness of his or her attorney, this does not mean that the immigrant voluntarily has waived his o her right"177. Therefore, if the immigrant is removed under these circumstances, his due process rights have been violated.178

In summary, there indeed are statutory and regulatory guarantees for the right to competent counsel. As described above, these guarantees form separate non-constitutional bases for fashioning remedies for incompetent counsel.179 Violation by incompetent counsel of these independent statutory and regulatory rights can constitute separate due process violations, without regard to whether there is a per se constitutional right to effective counsel.


This Note addresses three issues raised by Matter of Compean and the vacating order from Attorney General Holder. First, it addresses whether the government should appoint counsel to immigrants in removal proceedings under the Fifth or Sixth Amendment when they are unable to obtain private representation. Second, it addresses the grounds for reopening immigration cases when an attorney's performance was ineffective or prejudicial under current case law. Third, it reviews several factors the EOIR should consider in drafting a final rule for the reopening of immigration cases based on ineffective assistance of counsel.

A. Government-Appointed Counsel and the Fundamental Fairness Doctrine

Numerous authors have written about the value and necessity of counsel in removal proceedings. According to many of these authors, in order to promote "fundamental fairness" in immigration proceedings Congress must recognize, for example, that the removal proceeding of a LPR based on a criminal conviction amounts to punishment, thus warranting the right of appointed counsel at government expense.180 Although Congress and the courts have already refused to apply the Sixth Amendment right to counsel in immigration proceedings, many circuits have recognized a potential due process right in cases where fundamental fairness requires the appointment of counsel.181 In theory, different courts have recognized that government-funded counsel might be required but in practice, there is no precedent of courts appointing government-funded counsel in immigration proceedings.182 Indeed, in the past the BIA remanded cases to the IJ in order to appoint a guardian or representative, if necessary.183 However, what commonly occurs in practice is that IJ's, instead of appointing government-funded counsel, refer the cases to non-profit organizations.184

In Aguilera-Enriquez v. INS, the federal appellate court questioned the "no expense" statute and adopted a "case by case approach," to the issue of government-funded counsel.185 This test referred to whether in immigration proceedings the indigent immigrant would need the assistance of counsel to obtain "fundamental fairness"186 Some authors have argued that in a "case-by-case approach" the threshold question is the nature of the immigrant's interest.187 Before abandoning the "case-by-case approach" in state criminal prosecutions, the important factors are: (1) the gravity of the crime, (2) the indigent status of the defendant, (3) the characteristics of the defendant such as age, education, and other factors that would manifest a difficulty for defending himself, and (4) the complexity of the legal proceedings.188 Although in criminal cases where the liberty of the defendant is at stake there is an absolute right for counsel, a real "case-by-case approach" in removal proceedings where the IJ appoints government-funded counsel instead of referring the case to a non-profit organization is a good start, especially where the removal of the immigrant is at stake.189 In contrast, many authors argue the "case-by-case approach. does not provide sufficient protection against the erroneous deprivation of liberty and, therefore, all immigrants should have access to counsel. However, in practice the "case-by-case approach" has been never applied. Thus, we cannot say that it was not working because in reality it has never existed.

A primary concern for scholars opposing the right to government appointed counsel in immigration matters is the high expense to the government. However, scholars rebut this argument by pointing out that appointing counsel actually saves the government money by increasing the efficiency of removal proceedings and reducing detention time and cost.190

Another factor to consider in determining whether a change in the "status quo" is warranted is application of the Fundamental Fairness Doctrine. This doctrine states that a court must ascertain whether government actions "offend those canons of decency and fairness which express the notions of justice . . . "191 The Fundamental Fairness Doctrine is based on the Due Process Clause and the violation of "fundamental rights" such as liberty and justice.192 The Fundamental Fairness Doctrine has its roots in our English legal heritage and the "Magna Carta" and it is "more concerned with fairness than procedure"193

Representation is essential to success in immigration cases. Removal cases directly relate to individual liberty and the right to representation in court relates to the right to a fair trial and justice. In Powell v. Alabama, the Supreme Court held that based on the concept of fundamental fairness, there was a violation of due process when defendants were unable to secure counsel and the trial judge failed to appoint an attorney.194 What is important in Powell is that the ruling was not based on the Sixth Amendment but on the due process clause and the toughness of capital punishment.195 Similarly, the Fundamental Fairness Doctrine should apply in removal proceedings when the indigent immigrant cannot secure private representation because his liberty is at stake. Due to the complexity of immigration law and the lack of knowledge of American law by most immigrants, most likely an immigrant cannot adequately represent himself and thus the potential for injustice increases.

The varying approval rates in asylum cases is shocking since those represented by counsel are much more likely to prevail than those appearing pro se.196 Another astounding fact is how the approval rates vary nationally from judge-to-judge. For example, in Miami, one judge denies 16% of the asylum petitions while another denies 97%.197 This disparity in IJ‘s analysis, the expansion of single-member review of the appeals of the BIA (which in the past were decided by three-panel members), an increase of BIA decisions without opinion, and analytical deficiencies by the BIA and IJ‘s, greatly concerns the immigration bar,198 especially in the case of pro se defendants as they are most affected by these flaws.199

The case of Garcia v. INS demonstrates the variance in judicial behavior based on the appearance of counsel.200 In Garcia, the respondent filed an application for asylum for herself and her family.201 The IJ denied the asylum finding that the respondent "did not have a well-founded fear of persecution" because the respondent did not explain why members of the military in her country were pursuing them.202 The respondent appealed to the BIA "arguing that her right to a fair hearing had been denied"203 The BIA determined that the IJ did not violate her due process rights.204 The Seventh Circuit reversed the case and remanded, citing the violation of respondent's due process rights.205 In its decision, the Seventh Circuit examined the most relevant parts of the transcript of the hearing:

Q. AT [sic] this hearing he has a right to an attorney at his own expense, at his family's expense. You are now being handed a Form I-618 and also a copy of the local legal aid list which contains the names of organizations and attorneys who may be able to help him for little or not [sic] fee. Do you understand all that I've said so far, Ms. Jacinto Carrillo?
A. Yes.
Q. All right. Do you wish the Court to give you additional time to get an attorney to speak for you, rather for your son, in these proceedings, or do you wish to speak for him?
A. Yes.
Q. Which one?
A. The problem is -
Q. Which one? I don't want to hear about the problems, I just want to know whether you want to speak for him or whether you want time to get an attorney to speak for him?
A. I want to speak for him.
Q. All right. At this hearing, your son has certain rights, one, to present evidence in his own behalf; two, to examine and object to evidence presented against him; and three, to question any witnesses brought into hearing. Do you understand the rights that your son enjoys?
A. Yes.
Q. All right. In his behalf, do you admit that he [Ronald Garcia] is deportable and that he entered the United States without inspection?
A. That's if I admit?
Q. Yes, do you concede that your son, Ronald, in behalf of your son that he is deportable, that is, that he could be sent out of the United States because he entered this country illegally, that is that he entered the United States without inspection?
A. Yes.
Q. All right. If deportation becomes necessary, your son has the right to choose the country to which he will be sent. In that event, what, if any, country does he choose?
A. Well, it's safe here.
Q. Well, if he's ordered to leave here, what, if any, country does he wish to be sent, deported to?
A. Any other country but Guatemala.
Q. All right, well, does he wish to name a country, yes or no?
A. Like, Washington or -
Q. Country.
A. Any other place.
Q. Does he wish to name a country, yes or no? Yes or no?
A. Washington.
Q. What country is Washington?
A. I don't know, but -
Q. I don't either.
A. But we don't want to leave here.
Q. Yes. Well, I'll show that the Respondent‘s [sic] declined to name a country . . .
Q. All right. As I advised you a moment ago of the rights that your son had as far as presenting evidence in his own behalf. The same rights apply to you. Do you recall?
A. Yes.
Q. At this hearing you do have the right to be represented by an attorney at no expense to the Government or you may speak for yourself. I note that you are present today without an attorney. Do you wish to speak for yourself?
A. Yes.
Q. All right. Very well. At these hearings you also have the right to present any documentary evidence in support of your claim for asylum. Do you have any documents that you wish to submit at this time in support of your case?
A. Documents for, yes, I think I have some right here.
Q. Okay.
A. No.
Q. [INS attorney] Let‘s start from the beginning. You stated that Mr. Lopez had problems in Guatemala, by the Guatemalan army, is that correct.
A. Yes, he worked there. I'll explain. He -
Q. Ma‘am, I'm going to ask you some questions, try to answer these (indiscernible) in an organized way. Okay. When did Mr. Lopez, if you know, become a member of the Guatemalan army?
Q. Ma‘am, if they came to your house so often, and you were so afraid, why did you stay there for two years?
A. In the house? Why didn't you leave Guatemala earlier?
Q. See, but, ma‘am, please answer my question. If you were so afraid of these people and they were bothering you so often, why did you wait two years to leave Guatemala?
A. I did not wait that long. They threatened him, but they did not bother me, just at the end that they would come and bother me.
Q. To the Respondent, do you have any questions that you would like for the witness to answer?
A. No.
Q: All right, ma‘am, so, are you saying that if I do grant you a period in which to leave voluntarily, you will not leave. Is that what you‘re saying?
A: If you give me permission?
Q: To leave voluntarily, would you leave?
A: I don‘t know where I would go, but not to Guatemala.
Q: Well, you could go wherever you wanted to go, but you could leave, you would have to leave the United States. A: How‘s that?
Q: You would have to leave the United States. You would not have to go back to Guatemala, but you would have to leave the United States. Are you willing to do that, yes or no?
A: No. I cannot answer that question.

The entire record reveals the respondents‘ complete lack of understanding of the removal proceedings system and a complete lack of patience by the IJ. Yet the appellate court found the respondent was denied a full and fair hearing.206 Situations such as these, where the immigrant has to face a removal proceeding in which his or her liberty is at stake, occur daily across the nation. It is evident that fundamental fairness and the right of due process are violated in practice.

Because of situations such as those in Garcia, "five immigrant rights organizations [filed] a petition asking the Department of Justice to begin an 'official rulemaking'" in order to have the IJ‘s appoint counsel in certain cases.207 The petition was filed on June 29, 2009, and it is based on "[t]he massive increase in the number of immigration detainees, the increased complexity of the immigration law, and the inability of most immigrants" to successfully represent themselves.208

The petition presented by the organizations states that, in some cases, it is necessary to ensure that certain indigent immigrants obtain "court-appointed counsel" in order to ensure the fundamental fairness of their proceedings.209

B. Ineffective Assistance of Counsel (IAC)

As Hiroshi Motomura correctly stated: "it‘s a greater violation of due process to be misled by an attorney than to have no right to counsel in the first place"210 In the case of the Cortes-Montanez family,211 a Colombian family faced persecution by guerillas for refusing to collaborate and for denouncing the organization to the authorities.212 The IJ denied the asylum petition holding that the respondent was not targeted due to race, nationality, religion, membership in a particular social group or political opinion or even imputed political opinion by the guerilla group.213 The Court also found that respondent and his family did not have fear of future persecution.

The Cortes-Montanez family appealed the IJ's decision. For that endeavor, they retained a local immigration law attorney. The attorney charged $5,200.00 to represent them by preparing and submitting their appellate brief. However, in rendering judgment the BIA concurred with the IJ because respondents failed to submit a brief in support of their claim and identify prejudice by the IJ's actions.214 Upon further inquiry into this result, the Cortes-Montanez family was shocked to discover their attorney had never filed the appellate brief explaining the IJ's legal and factual errors relating to their claim for asylum, withholding of removal, and protection under the Convention Against Torture.

In his decision, Attorney General Mukasey held that although the Cortes-Montanez's attorney did not file a brief, the BIA addressed the four points alleged of error in the notice to appeal, and resolved them "on the merits"215 Thus, although the respondents apparently complied with the Lozada factors they failed to establish prejudice because the BIA resolved the case on the merits by holding that the IJ ruled the case in a "thorough and well-reasoned decision"216

In a more recent decision, the Ninth Circuit held that failing to supply documentation to the BIA reveals incompetent representation and "where the face of the record shows obvious ineffectiveness, strict compliance with Lozada is not required.217 This raises the question of how the BIA resolves cases on the merits having never received the relevant briefs developing the legal arguments. Although Attorney General Holder did well in vacating Matter of Compean, considering that even Mukasey recognized that Matter of J.E.C. complies with Lozada, courts should analyze the test of prejudice more carefully. Mukasey's decision in Matter of J.E.C. should not have been affirmed because the attorney's errors in that case were so wanton and blatant that prejudice was almost inevitable, far beyond the "more likely than not" standard"218

There are different kinds of ineffective assistance of counsel. Failure to comply with a court-imposed deadline, such as that suffered by the Cortes-Montanez family, is only one. Other common mistakes result from general ignorance of immigration laws, unethical caseloads, or failure to fully understand a client's factual situation due to cultural, language, or other barriers. Although there are many qualified and experienced immigration attorneys, there is evidence of just as many incompetent attorneys and even of illegal representation by non-attorneys.219 As Judge Bea stated "[a]lthough the immigration bar certainly has some of the best and most dedicated attorneys, it is also an area that attracts some of the worst." There are numerous reasons behind this; because the clients are foreign and most are unfamiliar with the U.S. legal system, they tend to accept whatever their attorney says at face value. If malpractice does occur, it is unlikely an immigrant will sue after deportation.220

An interesting case cited by Professor Vastine in his Note Is Your Client Prejudiced? Litigating Ineffective-Assistance-of-Counsel Claims in Immigration Matters Arising in the Eleventh Circuit is Florida Bar v. Alvarez,221 in which a Florida immigration attorney received a ninety-day suspension and a fine of less than $2,500 for being inadequately prepared in a hearing apparently because of a high caseload in front of the immigration court.222 The attorney in Alvarez had a history of missing deadlines, failing to submit documentation in support of claims, failing to communicate with his clients, and even ministerial errors such as mailing to incorrect addresses and causing his clients to unknowingly miss hearings.223

Cases such as Alvarez are far more common than they should be. The fundamental fairness doctrine, previously discussed, allows immigrants affected by ineffective representation, such as the Cortes-Montanez family, to have their cases reopened in order to avoid the devastating consequences of deportation. Indeed, in Powell v. Alabama, the Supreme Court held that it was a violation of the fundamental fairness and due process to fail to provide effective representation.224 The lack of effective representation in removal proceedings violates the fundamental rights of liberty and justice and, therefore, under the Fundamental Fairness Doctrine, courts must provide relief from the harm caused by bad attorneys, and the most reasonable way to accomplish this is to allow the respondent another opportunity to present his or her case.

Mukasey stated in Matter of Compean that although "there is a strong public interest in ensuring that a lawyer's deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings . . . there is a strong public interest in the expeditiousness and finality of removal proceedings"225 Apparently, Mukasey believed there to be some sort of abuse by respondents claiming ineffective assistance of counsel when the IJ or the BIA has denied a reopening case. Indeed, in some cases there have been "[w]orries about fraud due to attorneys and clients collaborating to raise ineffective assistance of counsel claims"226 However, the majority of scholars agree that the solution is not a declaration that aliens in removal proceedings have no specific right to effective assistance of counsel, but by mitigating the fraudulent claims with different measures.227 For instance, in Matter of Compean, Mukasey established preventive measures such as the requirement of an affidavit from the respondent and a statement by the new counsel expressing his or her belief about performance below minimal standards by the former counsel.228 The requirement of affidavits from people with knowledge of the ineffective assistance of counsel could also prove helpful in discouraging fraudulent claims.229 Finally, Mukasey noted that many courts recognizing the right of reopening when a respondent is prejudiced by IAC have limited that right in "proceedings in which an alien seeks non-discretionary relief," thus, precluding the right in claims where only discretionary relief is available "such as waiver or cancellation of removals . . . .230 Although the circuits are split on this issue, Mukasey was correct that the majority of the circuits have recognized a due process right only when the relief is non-discretionary.231 Immigrants applying for discretionary relief are denied due process232 usually because they are treated in the same manner as aliens facing exclusion proceedings.233

One problem with this view is that the treatment for immigrants in removal proceedings is the same whether the individual is a lawful permanent resident or an illegal alien. Many scholars have argued the majority view is wrong and should change. Such scholars consider the fact that "discretionary relief" was historically part of the immigration proceedings and deportation is not only an administrative sanction but also a deprivation of physical liberty.234 Although the argument that fundamental fairness, which is the very essence of due process, is violated when the government creates a right to petition and then makes it utterly impossible to exercise the right, the reality is that in the majority of circuits even permanent residents are treated "like applicants for initial admission" and denied due process when requesting discretionary relief.235

C. Final Rule

Although Attorney General Mukasey's statement in Compean regarding the non-existence of a specific right to effective assistance of counsel was somewhat provocative, the EOIR should consider numerous other components of the decision in proposing a final rule as requested by Attorney General Holder.236

One significant difference between Lozada and Compean is the requirement that respondents file a bar complaint when an attorney's performance was below minimal standards. By making the filing of a bar complaint a prerequisite for obtaining or even seeking relief, Lozada may inadvertently contribute to the filing of unfounded or even frivolous complaints.2377 Such complaints will unjustly impose costs on well-intentioned and competent attorneys and thus make it even harder for State ethical boards to identify meritorious complaints and impose sanctions on lawyers whose performance was truly deficient. The alternative proposed by Mukasey in Compean requiring respondents to attach a bar complaint to their petition to reopen and leave it in the BIA's discretion to file the complaint with the state ethical board is much more reasonable.

Another innovation in Compean is the requirement that the new attorney provide a statement expressing his opinion that "the performance of former counsel fell below minimal standards of professional competence"238 This requirement will certainly reduce the amount of attorneys colluding with their clients in committing fraud for fear of ethical sanctions.

Finally, the due diligence requirement proposed in Compean for the immigrant is extremely reasonable.239 It is in the immigrant's own interest to take basic measures to ensure that his removal proceeding is being handled correctly and promptly. Thus, it is not unreasonable to require respondents in removal proceedings to act diligently.

Regarding non-attorneys, it is interesting that Mukaseyes ruling in Compean noted that if the immigrant reasonably but erroneously believed he was retaining a lawyer, then fundamental fairness dictated he be able to seek reopening of the case should ineffective assistance occur. However, if the immigrant knowingly retained an individual that was practicing immigration law illegally then the mistake was his own and no claim for reopening based on ineffective assistance would be available.240

The most important issue the EOIR will decide is the standard of review. Lozada applies a "reasonable probability" standard while Compean introduced the much stricter "more likely than not" standard. For many authors, Compean's standard is "too high" while others argue the "reasonable probability" standard is too passive and induces fraud. In reality, even a seemingly trivial error by an attorney such as missing a deadline or mailing to an incorrect address could make a profound difference in removal proceedings, where the liberty and the unity of a family is at stake.


On February 6, 2006, the American Immigration Law Foundation (AILF), the American Immigration Lawyers Association (AILA) and other advocates and institutions joined together in requesting President Barack Obama and newly appointed Attorney General Holder to vacate Matter of Compean and restore Matter of Lozada, thus guaranteeing immigrants right to effective counsel in removal proceedings.241 The resulting injustice when some circuits recognized ineffective assistance of counsel as grounds for reopening a case while other circuits refused was simply far too great. On June 3, 2009, Attorney General Holder complied with these requests by vacating Matter of Compean and temporarily reinstating the Lozada‘s framework until the EOIR proposes a final rule. Holder‘s actions represent a profound resolution of the circuit split on this issue,242 opening the door for implementation of an official policy affirming that ineffective assistance of counsel amounts to a due process violation based on the Fundamental Fairness Doctrine. After many trying years for immigrants‘ rights, perhaps Attorney General Holder‘s actions represent a positive change, a sign that this administration is truly concerned with protecting immigrants‘ rights in the United States of America, this great nation of immigrants

End Notes

1Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988).

2The ability of an individual to represent himself must be measured in light of the complexity of the legal proceeding he is facing. A mere examination of the Immigration and Nationality Act leaves no doubt that the immigration laws and procedures are extremely complicated. See Charles Gordon, Right to Counsel in Immigration Proceedings, 45 MINN. L. REV. 875, 879 (1961).

3Beth J. Werlin, Renewing the Call: Immigrants’ Right to Appointed Counsel in Deportation Proceedings, 20 B.C. THIRD WORLD L.J. 393, 414 (2000).

4Castro-O‘Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988).

5In 2008, 112,231 out of 281,041 people (less than 40%) obtained legal representation in front of the immigration courts. See U.S. Department of Just.: Executive Off. of Immigr. Rev., FY 2008 Statistical Yearbook, at G1.

6See generally Pub. L. No. 82-414, 66 Stat. 163 (codified amended at 8 U.S.C. § 1101).

7Donald Kerwin, Revisiting the Need for Appointed Counsel, 4 INSIGHT (newsl. of the Migration Pol‘y Inst.) 01 (2005).

8See Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001); Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001); Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999); Saleh v. U.S. Dep‘t of Justice, 962 F.2d 234, 241 (2d Cir. 1992); Lozada v. INS, 857 F.2d 10, 13-4 (1st Cir. 1988); Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985).

9Some courts follow the framework established in Matter of Lozada, but other courts apply different frameworks. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

1024 I&N Dec. 710 (BIA 2009).

11Lawyers have a duty to provide competent representation to each client. This duty is based on the constitutional right to counsel, which courts have clarified as meaning the right to effective assistance of counsel. Although the Supreme Court has not laid out what specifically constitutes effective assistance of counsel, a defendant may raise ineffective assistance of counsel claims generally or specifically. General claims include allegations of lack of preparation, lack of experience or skill handling a case or an error. Specific claims include the failure to investigate an issue, failure to object to evidence, and failure to call or cross-examine witnesses. See Elizabeth Gable & Tyler Green, Wiggins v. Smith: The Ineffective Assistance of Counsel Standard Applied Twenty Years After Strickland, 17 GEO. J. LEGAL ETHICS 755, 755 (2004).

12See Matter of Compean, 24 I&N Dec. at 710. When the Attorney General ordered the BIA to refer to him for review the case of the Cortes-Montanez family (Order No. 2990-2008), the author was working as a law clerk in the Law Offices of Robert J. Jacobs, counsel for the family Cortes-Montanez (Matter of J.E.C.).

13The decision had two key components: on one hand it addressed the lack of constitutional right for government-appointed counsel and the lack of constitutional right to effective assistance of counsel ("because there is no constitutional right of counsel . . . . where . . . there is no constitutional right to counsel . . . in the first place"), and on the other hand established that "the Department of Justice is not limited to the very least the Constitution demands,. and that they have discretion for reopening a removal proceedings based on ineffective assistance of counsel. See Daniel Changshik Moon, Former Attorney General Mukasey Eliminates Right to Effective Assistance of Counsel in Immigration Proceedings, 23 GEO. IMMIGR. L.J. 245, 245 (2008).

14"Mukase's ruling outraged immigration lawyers struggling to represent clients who'd been misrepresented in the past.. See Daphne Eviatar, Holder Restores Right to Effective Counsel in Immigration Court, WASH. INDEP., available at http://washington on-court (last visited Feb. 28, 2010). See also Letter from H. Thomas Wells Jr., ABA President, to Eric Holder, Attorney General (Feb. 4, 2009) (requesting AG Holder to revisit Matter of Compean) (copy on file with author).

15See John Schwartz, Ruling Says Deportation Cases May Not Be Appealed Over Lawyer Errors, N.Y. TIMES, available at (last visited Feb. 28, 2010)(Opinion from immigration lawyer Angelo A. Paparelli); see also Letter from American Immigration Law Foundation to Eric Holder, Attorney General (Mar. 5, 2009) (arguing that Matter of Compean and Matter of Silva-Trevino manifests Attorney General Mukasey's failure to provide for an open and transparent process when issue complex opinions contrasting the position of the Obama administration (copy on file with author).

16There is no constitutional violation of the Fifth Amendment if a privately retained attorney "performs ineffectively" because there is no nexus between the ineffectiveness and the state action, which is necessary for invoking the Constitution. See Patrick J. Glen, The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey, 82 S. CAL. L. REV. POSTSCRIPT 1, 1 (2008).

17See Schwartz, supra note 15 (opinion of Kris W. Kobach, immigration law professor at University of Missouri, Kansas City).

18Audio tape: Late-Breaking Seminar: The Right to Counsel-The AG's Decision in Matter of Compean, held by the American Immigration Lawyers Association (Jan. 29, 2009) (on file with author).

19The Lozada test requires that the bar complaint filed against the former attorney be attached to the petition to reopen the case. Although the Compean test did not forbid the petitioner to file a complaint with the bar association, the petitioner was not required to do so. The intention was to have the BIA evaluate whether to file the complaint or not. Mukasey was trying to reduce the high amount of frivolous complaints to ethical boards. For some authors, this "feature" should be considered in the rulemaking process. See Thomas K. Ragland, What did Compean Accomplish? The Uncertain Right to Effective Assistance of Counsel in Immigration Proceedings, ABA IMMIGR. LITIG., available at committees/immigration/articles/0609_ragland.html (last visited July 8, 2009).

20For some authors immigration law is not entirely civil but civil and administrative. See Robert N. Black, Due Process and Deportation ¨"In there a Right to Assigned Counsel", 8 U.C. DAVIS L. REV. 289, 289 (1975). See also Matter of Compean, 24 I&N Dec. 710 (BIA 2009).

21See Gastelum-Quinones v. Kennedy, 374 U.S.469, 479 (1963).

22See e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Bridges v. Wixon, 326 U.S. 135, 154 (1945). See also Gordon, supra note 2.

23That case involved a Chinese national who resided as a lawful permanent resident in the United States for over 10 years. He left the United States in 1887 holding a valid reentry permit. Prior to returning to the United States, a new law was enacted annulling reentry permits granted to Chinese nationals. When he arrived to the United States he was not permitted to enter. The Court declined to review the case as an expulsion case and instead the immigrant was denied entry. Courts analyze this case as the beginning of the view of removal as civil in nature. See Chae Chang Ping v. United States, 130 U.S. 581, 581-90 (1889).

24Fong Yue Ting v. United States involved three non-citizens residents of the United States facing expulsion under a law requiring all the Chinese residents of the United States to register and obtain certificates attesting to their right to reside in the United States. The law provided for the expulsion, through judicial determination, of any Chinese resident in such proceedings and required that such burden could only be satisfied with the testimony of "at least one credible white witness." See Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893).

25Id. at 713. While the expulsion is the act of forcing out a foreigner, the exclusion is the refusal of entry into the United States by immigration officials. Dictionary of Law 175 (Merriam-Webster, 1st ed., 1996).

26The final vote was 6 to 3. See Fong Yue Ting, 149 U.S. at 704.

27Id. at 730.

28Id. at 733-44.


30Id. at 733.

31A denizen is defined in the legal dictionary as ¨Da person admitted to residence in a foreign country; especially "an alien admitted with similar rights of citizenship." Dictionary of Law 132 (Merriam-Webster, 1st ed. 1996).

32See Fong Yue Ting, 149 U.S. at 736.

33Id. at 737-38. It is not necessary to have an over-active imagination to conclude (as some courts have) that deportation amounts to "banishment or exile." See Costello v. INS, 376 U.S. 120, 131 (1964); Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947).

34See Fong Yue Ting, 149 U.S. at 736-41.

35See Mahler v. Eby, 264 U.S. 32, 39 (1924); see also Bugajewitz v. Adams, 228 U.S. 585, 592 (1913).


37Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, 43 HARV. C.R.-C.L L. REV. 289, 290 (2008). See also Justice Douglas" opinion in Bridges v. Wixon, 326 U.S. 135, 154 (1994) (Although deportation is not considered a criminal proceeding, ¨Dit visits a great hardship on the individual" because ¨Dit deprives him of the right to stay and live and work in this land of freedom." Therefore, it cannot be doubted "that deportation is a penalty ¨Cat times a most serious one").

38Markowitz, supra note 37, at 290-91.



41Id. at 307.

42William Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 455, 461 (1998). See Markowitz, supra note 37, at 321.

43Banishment was considered a criminal punishment imposed after completion of the criminal process with all the relevant procedures and protections attached thereto. See GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 131-33 (1996). See Markowitz, supra note 37, at 330.

44Id. at 328.

45Some of the most common criminal crimes that could trigger removal are: smuggling, marriage fraud, document fraud, terrorism, espionage, drug abuse, falsely claims of citizenship, failure to report change of address, unlawful voting. Out of the twenty-five separately enumerated statutory grounds upon which someone could be removed, only three are not related to criminal charges (1) becoming a public charge within five years after admission, (2) activity that has serious adverse foreign policy consequences, and (3) Inadmissibility at the time of admission. See 8 U.S.C.A. § 1227 (2008).

46U.S. CONST. amend. VI (emphasis added).

47In 1965, the Supreme Court ruled that the guarantee of appointed counsel extended to the civil commitment of a juvenile. In In re Gault, the Supreme Court for the first time extended the right to counsel to a non-criminal case. 387 U.S. 1, 35-42 (1966). The Court considered the fact that it was an adversary proceeding in which the state brought its power to deprive an individual‘s liberty. Id. In 1973, the Supreme Court ordered state probation departments and parole boards that due process requires the appointment of counsel in certain classes of revocation cases. See Black, supra note 20, at 290.

48Fadiga v. Att‘y Gen., 488 F.3d 142, 157 (3d Cir. 2007) (citations and internal quotations omitted).

49Aguilera-Enriquez v. INS, 516 F.2d 565, 568 n.3 (6th Cir. 1975). See also Orantes-Hernandez v. Smith, 541 F. Supp. 351, 377 (C.D. Cal. 1982) ("Although deportation proceedings are civil in nature, the stakes are more akin to those in the criminal process.); Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988), aff'd sub nom Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) (emphasis added).

50See INS v. Lopez- Mendoza, 468 U.S. 1032, 1038 (1984).

51The Illegal Immigration Reform and Illegal Responsibility Act (IIRIRA) was a bill signed into law by President Clinton in 1996. See Jean Pierre Espinoza, Overview and Analysis of the Development, Relief, and Education for Alien Minors Act (DREAM Act) "What Was Not But Could Be,. 5 J. MIGRATION & REFUGEE ISSUES 1, 1 (2009).

52See INA 236(c) (2009); 241(a)(2) (2009); 235(b)(1)(B)(iii)(IV) (2009).

53Although viewed as "civil" in nature, removal proceedings largely mirror criminal trials. Attorneys must contest the government's charge, introduce evidence and put on witnesses. They must compete against opposing government counsel, knowing that an adverse decision will result in their client's banishment and, in some cases, significant peril. See Immigration Court Practice Manual, Executive Office for Immigration Review, available at OCIJPracManual/ocij_page1.htm (last visited Aug. 2, 2009).

54Stroe v. INS, 256 F.3d 498, 505 (7th Cir. 2001).

55International Covenant on Civil and Political Rights (ICPR) is a U.N. treaty based on the Universal Declaration of Human Rights, created on 16 December 1966 and entered into effect on 23 March 1976. The ICPR is monitored by the Human Rights Committee. The U.S. Senate ratified the ICPR in 1992. See Paul Sieghart, THE INTERNATIONAL LAW OF HUMAN RIGHTS 25 (1983).

56See Brief for The Advocates for Human Rights as Amicus Curiae in Matter of Compean at 2. The United Nations Convention Relating to the Status of Refugees is an international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The convention also sets out which people do not qualify as refugees. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (1967 art. 1).

57The Convention requires states to take effective measures to prevent torture within their borders, and forbids states to return people to their home country if there is reason to believe they will be tortured. The United States signed on to the Convention on April 18, 1988 and it was ratified on Oct. 21, 1994. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

58International Covenant on Civil and Political Rights, art. 13, Dec. 16, 1966, 993 U.N.T.S. 3 (emphasis added).

59The argument takes two sides: (1) on one hand the right for government-appointed counsel, and (2) on the other hand, the right of effective assistance of counsel. The "Advocates for Human Rights. argue that the EOIR has expressed concern regarding the large number of individuals appearing "pro se" and how the lack of counsel has a negative impact on the outcomes. See Kerwin, supra note 7, at 5. Another fact to consider is the criticism against the United States as a country violating the non-refoulement obligation of the Refugee Convention and the Convention Against Torture. Patrick J. Glen, Is the United States Really Not a Safe Third Country?: A Contextual Critique of the Federal Court of Canadafs Decision in Canadian Council for Refugees, et al. v. Her Majesty the Queen, 22 GEO. IMMIGR. L. J. 587, 588 (2008).

60U.S. CONST. amend. V.

61Id. (emphasis added).

62See Matter of Compean, supra note 10, at 716-20. Some authors found former Attorney General Mukasey's opinion "intentionally provocative" when declaring that there is no constitutional right to effective assistance of counsel in removal proceedings. See Ragland, supra note 19, at 2.

63See, e.g., Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir.2005); see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (suggesting the same in dictum); Stroe v. INS, 256 F.3d 498, 500-01 (7th Cir. 2001) (noting that the "question whether there is ever a constitutional right to [effective assistance of] counsel in immigration cases is ripe for reconsideration"). See Matter of Compean supra note 10, at 713.

64See Matter of Compean, 24 I&N Dec. 710 (BIA 2009).

65Dakane v. U.S. Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2004) ("It is well established in this Circuit that an alien in deportation proceedings . . . has the constitutional right under the Fifth Amendment Due Process Clause to a fundamentally fair hearing to effective assistance of counsel where counsel has been obtained") (emphasis in original); Jezierski v. Mukasey, 543 F.3d 886, 890 2008 (7th Cir. 2008) (The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the noncitizen to proceed without a competent lawyer would deny him due process of law), citing Kay v. Ashcroft, 387 F.3d 664, 676 (7th Cir. 2004), (where the panel determined that the denial of effective assistance of counsel in the circumstances violated the Fifth Amendment) and Sanchez v. Keisler, 505 F.3d 641, 647 (7th Cir. 2007) (the substantive standard for assessing effectiveness of counsel is derived ultimately from the Fifth Amendment Due Process Clause); Fadiga v. Att'y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (A claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment as a violation of the guarantee of due process), citing Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (noncitizens in removal proceedings have a Fifth Amendment right to due process, which includes a right to be represented by counsel. Ineffective assistance of counsel may constitute a denial of due process if the noncitizen was prevented from reasonably presenting his case.) (internal quotations omitted; citing Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988); Sako v. Gonzales, 434 F.3d 857, 863-64 (6th Cir. 2006) (the noncitizen can establish that ineffective assistance of counsel prejudiced him or denied him fundamental fairness to prove that he has suffered a denial of due process); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (as an \integral part. of procedural due process, noncitizens in deportation proceedings have a statutory right to be represented by counsel) (quoting Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993); Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir. 2008) (A claim of ineffective assistance of counsel is a constitutional claim under the Fifth Amendment Due Process Clause); Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d. Cir. 2008) (the Fifth Amendment requires that deportation proceedings comport with due process; due process concerns may arise when retained counsel provides immigration representation that falls so short of professional duties as to impinge upon the fundamental fairness of the hearing); Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir. 2007) (Ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if (and to the extent that) the proceeding is thereby rendered fundamentally unfair), citing Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988). Lozada itself cited prior circuit court cases that grounded the right to competent counsel in the Fifth Amendment. See Lozada, 19 I&N Dec. at 638, citing Paul v. INS, 521 F.2d 194 (5th Cir. 1975) and Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir. 1986) (for the principle that ineffective assistance of counsel impinges upon fundamental fairness of the hearing in violation of the Fifth Amendment Due Process Clause). See Brief for American Immigration Law Foundation as Amicus Curiae in Matter of Compean, supra note 10, at 12-4.

66It is important to mention that Mukasey in Matter of Compean implies that the Seventh Circuit rejects the proposition that there is a constitutional right to effective assistance of counsel in removal proceedings; however, recently the Seventh Circuit held that "ineffective assistance of counsel can rise to the level of a due process violation" See Malik v. Holder, No. 08-2846, 2009 U.S. App. LEXIS 5240 (7th Cir. 2009). See also AILF, LITIG. CLEARINGHOUSE NEWLR., Vol. 4 No. 5 (April 17, 2009). (Matter of Compean mischaracterizes the Seventh Circuit as previously having rejected outright that there is a constitutional right to effective assistance of counsel).

67Matter of Lozada, supra note 1, at 637. A CIMT is defined as an act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man or to society in general. That act violates moral sentiment or accepted moral standards of community. See Norton Tooby & Jennifer N. Foster, CRIMES OF MORAL TURPITUDE, 184 (Tooby Norton 2002).

68Under former INA § 212(c), aliens placed in removal proceedings because of criminal convictions could seek a waiver of those convictions, and thereby avoid removal. The statutory eligibility for this waiver were; (1) the alien must have at least seven years unrelinquished residence in the United States, (2) At least five years as a lawful permanent resident, and (3) not serve more than five years in prison after being finally convicted of an offense. INA § 212(c). This form of relief is also known as the predecessor of the Cancellation of Removal for Certain Aliens. INA § 240A.

69Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988).





74Id. at 637.

75Id. The procedural framework established in Matter of Lozada was aimed at establishing the claim of ineffective assistance of counsel. Since Lozada, these requirements have been broadly adopted in many federal courts of appeals, along with the "notion that aliens enjoy a constitutional due process right to the effective assistance of counsel". See Patrick J. Glen, The Death Knell for Constitutional Ineffective Assistance of Counsel Claims in Immigration Proceedings, available at 1409409 (last visited July 10, 2009).

76In re Bassel Nabih Assaad, 23 I&N Dec. 553, 554 (BIA 2003).



79Hardship waiver for the aliens who could demonstrate that they entered in a marriage in good faith but the marriage had been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the general requirements. 8 U.S.C. 1186 (2008).

80The enactment of the Immigration Marriage Fraud Act (IMFA) resulted in the addition of section 216 to the INA, which imposed the initial two-year period of conditional residency on a person who acquired permanent resident status based on a recent marriage, defined as a marriage of less than twenty-four (24) months. Pub. L. No. 99-639, 100 Stat. 3537 (1986). See Noel L. Grislwold, Forgetting the Melting Pot: An Analysis of the Department of Homeland Security Takeover of the INS, 39 SUFFOLK U. L. REV. 207, 216 (2005). During the two-year conditional period, if an immigration officer determines that the marriage by which the alien spouse is petitioning through is fraudulent, he shall be able to terminate the alien spouse's permanent resident status. In addition, 216 sets forth the comprehensive procedure by which an alien spouse granted conditional resident status may have the conditions removed and obtain unconditional, permanent legal resident status. 8 C.F.R. 216.4 (2009). See Sandra D. Pressman, The Legal Issues Confronting Conditional Residents Aliens Who Are Victims of Domestic Violence: Past, Present, and Future Perspectives, 6 MD. J. CONTEMP. L. ISSUES 129, 134 (1995). Even though, during the two years of the conditional residency the immigrant divorces the U.S. citizen, he or she could be able to remove the conditions through one of the waivers. See also Jean Pierre Espinoza et al., Issues of Filing a Form I-751 for an LPR Separated But Not Divorced: A Policy With Little Sense and a Big Burden, 14 BENDER'S IMMIGR. BULL 982, 986 (Aug. 15, 2009).

81Matter of Assaad, 23 I&N Dec. at 555.



84Currently the United States Citizenship and Immigration Services (USCIS) handles all the adjudications performed by the former INS.

85Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (The Supreme Court found that since a convicted felon had no constitutional right to counsel to pursue a discretionary state appeal, he could not be deprived of the effective assistance of counsel by his attorney's failure to timely file the discretionary appeal).

86Coleman v. Thompson, 501 U.S. 752, 753 (1991) (The Supreme Court reiterated that where there is no constitutional right to counsel, there can be no deprivation of effective assistance of counsel. In this case, the prisoner's attorney had sought state habeas review of various claims but had filed his state appeal late, resulting in a procedural default. The prisoner claimed that his attorneyes error should excuse the procedural default and allow federal habeas corpus review of the merits of his claim. The Court rejected this argument, holding that because there is no constitutional right to an attorney in state post conviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings).

87A Brief for Beth Werkin, Nadine Wettstein, and Mary Kenney as Amici Curiae argued against INS in that the Supreme Court's decisions in Coleman and Wainwright should be limited in their application to the specific contexts in which they arose (criminal law) and "are not relevant to whether respondents in immigration proceedings may assert a constitutional claim of ineffective assistance based on the Due Process Clause of the Fifth Amendment" Matter of Assaad, 23 I&N Dec. 553, 557 (BIA 2003).

88Id. at 588.


90The BIA reiterated its finding in Lozada that not allowing an immigrant to defend himself in immigration proceedings is against the basic idea of "fundamental fairness," which is a main concept in our legal system. Id.

91In ruling on this matter, the BIA acknowledged that Matter of Lozada was decided fifteen years ago. The circuit courts have consistently recognized that despite having no right to appointed counsel in an immigration hearing, a respondent has a Fifth Amendment Due Process to a fair immigration hearing and may be denied that right if counsel prevents the respondent from meaningfully presenting his or her case. Also, many circuits have found a basis in the Fifth Amendment for ineffective assistance of counsel claims. For example, in Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001), the court noted that while there is no Sixth Amendment right to counsel in deportation proceedings, aliens do have a constitutionally protected right to procedural due process in deportation proceedings. This due process right is violated when the representation afforded to an alien is so deficient as to impinge on the fundamental fairness of the proceedings. Id.; see also Lara v. Trominski, 216 F.3d 487, 498 (5th Cir. 2000) (upholding the requirements set forth in Matter of Lozada and finding that \the general application of the Lozada rules is not an abuse of discretion.); Miranda-Lores v. INS, 17 F.3d 84 (5th Cir. 1994). See also Matter of Yanez, 23 I&N Dec. 390 (BIA 2002); Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Numerous circuit court decisions have also generally endorsed the procedural requirements set forth in Matter of Lozada for making a claim of ineffective assistance of counsel. See, e.g., Xu Yong Lu v. Ashcroft, 259 F.3d 127,132 (2001) (concluding that the three-prong Lozada test is a "reasonable exercise of the Board's discretion"); Lata v. INS, 204 F.3d 1241, 1246 (2000) (noting that the Board has laid out a "comprehensive procedure" that petitioners should follow, and that this procedure has been adopted by other circuits). See Fajardo v. INS, 300 F.3d 1018, 1020-1021 (9th Cir. 2002). Finally, the BIA strongly considered the fact that most of the decisions cited were rendered in the decade after the Supreme Court decided Coleman. For the BIA in Assaad, this strongly suggested that the circuit courts have not viewed the Supreme Courtes pronouncements in Coleman (criminal context) as requiring a reexamination of the due process underpinnings of ineffective assistance of counsel claims in the immigration context.

92Matter of Assaad, 23 I&N Dec. at 560.

93Native citizen of Mexico entered without inspection (EWI) the United States in 1989. In 2004, he was placed in removal proceedings and sought cancellation of removal. The IJ denied respondentes request on the ground that he had failed to establish the "exceptional and extremely unusual hardship" required by section 240A(b)(1)(D) of the Act, 8 U.S.C. 1229b(b)(1)(D) (2006), and ordered him removed from the United States. After the BIA affirmed on the merits, respondent filed a motion to reopen on the grounds of ineffective assistance of counsel arguing that his former lawyer had failed to present evidence of a pending visa petition. The BIA denied the motion on two grounds: 1) that respondent had not filed a complaint with disciplinary authorities regarding his lawyeres deficient representation or explained his failure to do so, as required by Lozada, and 2) respondent had failed to establish that he suffered prejudice from his lawyeres actions. Matter of Compean, 24 I&N Dec. 710, 714-15 (BIA 2009).

94Bangaly was a native and citizen of Mali, admitted in the United States in 1998 as a non-immigrant and he unlawfully overstayed. He was placed in removal proceedings in 2003. Respondent subsequently obtained several continuances because he had filed for adjustment of status based upon his 2002 marriage to a U.S. citizen. In 2004, the Department of Homeland Security (DHS) denied respondentes request for adjustment of status because his wife had failed three times to appear for the interview. The IJ ordered him removed. Respondentes lawyer filed a notice of appeal but never filed an appellate brief. The BIA summarily affirmed the IJes order. Approximately two years later, respondent moved to reopen his removal proceedings, alleging that his former counseles failure to file an appellate brief and to notify him that his appeal had been summarily denied constituted ineffective assistance of counsel but the respondent did not explain how he had been prejudiced by these failures. The BIA denied respondentes motion because he had failed to comply with one of Lozada's requirements: he had not given his former counsel a chance to respond to his allegations of ineffective representation. Id. at 715.

95In Matter of J.E.C., respondent was a native and citizen of Colombia who sought asylum, withholding of removal, and protection under the Convention Against Torture on his own behalf and derivatively for his wife and children. The DHS found respondents ineligible for relief and began removal proceedings. In the individual hearing, the IJ denied any relief, concluding that, among other things, failure to demonstrate persecution "on account of. a protected ground, and ordered respondents removed. Respondents lawyer filed a notice of appeal with the BIA alleging four points of error, but he never filed a brief in support of the appeal. Respondents moved to reopen, contending that counseles failure to file a brief constituted ineffective assistance of counsel. The BIA concluded that "respondents had suffered no prejudice from the failure to file a brief because a brief would not have changed the outcome" of the case. Id. at 715-17.

96Id. at 712.

97Id. at 714.

98For Attorney General Mukasey, the actions of a private party, including a privately retained lawyer, can give rise to a due process claim only if those actions can be attributed to the Government for constitutional purposes. Id. at 717. Mukasey argued that in case of counsel‘s error, the sole remedy should be a suit for malpractice. Id. at 718. It would have been interesting if Mukasey addressed what amount should be enough to compensate a person who is split from his family due to removal, or a person who is returned to a place where he/she will suffer from persecution.

99Attorney General Mukasey relied on Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (stating that the Due Process Clause applies only to governmental decisions which deprive individuals of "liberty" or "property" interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment). Matter of Compean, 24 I&N Dec. 710, 717 (BIA 2009).

100Some circuits have explained that the requirements enumerated in Lozada were just a suggestion from the BIA of factors that could be considered. See Rebecca Feldman, What Constitutes Exceptional? The Intersection of Circumstances Warranting Reopening of Removal Proceedings After Entry of an In Absentia Order of Removal and Due Process Rights of Noncitizens, 27 WASH. U. J.L. & POL‘Y 219, 232 (2008). See also Castillo-Perez v. INS, 212 F. 3d 518, 526 (9th Cir. 2000) (While the requirements of Lozada are generally reasonable, they need not be rigidly enforced where their purpose is fully served by other means).

101Matter of Assaad, 23 I&N Dec. 553, 554 (BIA 2003).

102Matter of Compean, 24 I&N Dec. 710, 719 (BIA 2009).

103Afwani v. Mukasey, 526 F.3d 788, 797 (4th Cir. 2008).

104Barthold v. INS, 517 F.2d 689, 691 (5th Cir. 1975).

105Paul v. INS, 521 F.2d 194, 200 (5th Cir. 1975).

106Matter of Compean, supra note 10, at 719.

107Afanwi v. Mukasey, supra note 103, at 798-99.

108Id. at 791.





113Id. at 796.

114Id. at 796-97.

115See cases cited, supra note 64.

116Afanwi, supra note 103, at 798.


118Id. at 798-9.

119Id. at 199.

120It is important to mention that Afanwi has filed a petition for certiorari at the Supreme Court. Petition for certiorari filed, 08-906 (Jan 16, 2009). Brief for Petitioner, Afwani v. Holder, No. 08-906 (U.S. 2009).

121Matter of Compean, supra note 10, at 726.

122Id. at 714.


124Id. at 728.

125Mukasey held that the source for this authority is the Department of Justicees broad authority to reopen removal proceedings. See section 240(c)(7) of the Act (permitting a motion to reopen within 90 days of the date on which a final administrative order of removal is entered); section 240(b)(5)(C) of the Act (granting an alien 180 days to seek reopening in order to rescind a removal order entered in absentia; and providing no time limit where the alien did not receive notice of the immigration hearing or was in custody); 8 C.F.R. ˜ 1003.2 (2008). The Act and its implementing regulations place a few limits on the BIA's discretion in determining whether reopening is warranted, see, e.g., section 240(c)(7)(B) of the Act (providing that a motion to reopen must state "the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material"); 8 C.F.R. ˜ 1003.2(c) (2008) ("A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing . . . ..), but the problem is that the BIA generally enjoys "broad discretion" in ruling on motions to reopen, and may deny reopening even where an alien has made a prima facie showing of eligibility for relief. INS v. Doherty, 502 U.S. 314, 323 (1992); accord INS v. Abudu, 485 U.S. 94, 105-06 (1988); INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); Matter of Coelho, 20 I&N Dec. 464, 471-72 (1992); cf. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (stating that the authority to reopen proceedings sua sponte is limited to "exceptional" circumstances and "is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship"). Id. at 714, 728.

126Id. at 728.

127See e.g. Aris, 517 F.3d at 600; Hernandez-Gil, 476 F.3d at 806-07. Mukasey also remarked that "[t]he deficiencies of the immigration bar are well known. Stroe, 256 F.3d at 504; see also, e.g., Aris, 517 F.3d at 596, 600-01 ("With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country"). Id.

128Cf. Final Rule: Professional Conduct for Practitioners" Rules and Procedures, 65 Fed. Reg. 39, 513, 39, 514-15 (June 27, 2000) (recognizing that an effective disciplinary system protects the public, preserves the integrity of the immigration courts, and helps maintain high professional standards); Final Rule: Professional Conduct for Practitioners¡ªRules and Procedures, and Representation and Appearances, 73 Fed. Reg. 76, 914, 76, 915 (Dec. 18, 2008) (defining ¨Dadditional categories of behavior that constitute misconduct¡¬ by attorneys and accredited representatives in order to ¨Dpreserve the fairness and integrity of immigration proceedings, and increase the level of protection afforded to aliens in those proceedings"). Id.

129Abudu, 485 U.S. at 108; see also Doherty, 502 U.S. at 323 (stating that motions to reopen are "especially" disfavored ¨Din a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States"); Betouche v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004) ("Since a delay in deportation may itself constitute a substantial boon to an alien already subject to a final deportation order, there exists a significant prospect that entirely meritless and/or collusive ineffective assistance claims may be filed for purely dilatory purposes."). Id. at 729.

130Id. at 729-30.

131Id. at 730 (quoting Betouche v. Ashcroft, 357 F.3d 150 (2004)).



135Mukasey meant that the BIA and IJ's "retain discretion to deny relief in appropriate circumstances even if the prerequisites described below are satisfied, especially where the ultimate relief sought is discretionary.. Id. 135. Mukasey held that in the interest of national uniformity, the BIA and IJ's "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. That will allow those circuits to reconsider the question (en banc if necessary) more efficiently and easily, without the weight of the Board's 1988 Lozada precedent, which predated the majority of the relevant judicial decisions" Id. at 730, 743 n.8.

136This was apparently a major change. Lozada established that the petitioner must have to demonstrate that (1) there was a "reasonable probability. that (2) "but for" counsel's error, the result of the mistake would have been different. See Matter of Lozada, supra note 1, at 639-40. On the other hand, the "egregious error. required in Compean "apparently. is a higher burden for demonstrating the prejudice. Id. at 732.


138Mukasey established a presumption that the attorney performed well and the opposite (that there has been ineffective assistance from the attorney) would have to be proven by the petitioner. Id.

139This is related to Mukasey's statement that in some cases frivolous petitions for reopens a case, looking for the delaying of the deportation, is often filed. Id.

140For Mukasey, "due diligence requires an alien to prove that the delay in filing the motion to reopen was due to an exceptional circumstance beyond his control.. This requirement was also new. Lozada's test does not require due diligence in discovering the deficient performance. However, some circuits have denied to re-open a case applying Lozada if there was evidence that the petitioner did not act diligently. Id.

141This new requirement of "due diligence" sounds reasonable because the petitioner is the person interested in the outcome of the case; therefore, if he discovers that there have been a mistake of his former counsel he should petition a remedy from the court rapidly instead of waiting the last minute. Id. at 732-33.

142For Mukasey, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id. at 733.

143There are many standards for evaluating the prejudice in a case based on ineffective assistance of counsel. The strict standard is one in which the alien "must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States. See Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006). Another standard similar to the "strict standard" is the "substantial evidence" test, under which the court must affirm the IJ's decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole" See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted)."Other courts apply a standard similar to the one the Supreme Court established in Strickland for Sixth Amendment ineffective-assistance-of-counsel claims, namely a reasonable probability" See Matter of Compean, 24 I&N Dec. 710, 733 (BIA 2009).

144This would have required a showing that, but for the lawyer's error, the alien likely would have been entitled to continue residing in the United States. The "but for" or "sine qua non" rule, which considers whether the removal would not have occurred "but for" the defendant's attorney's act establishes the proximate cause of the removal. Id. at 734.

145This is the highest standard for prejudice because the petitioner would be required to prove not only that there is merit for continuing to fight the deportation in court, but also that "but for" the counsel's mistake, the petitioner would not have been removed. Id.

146Some of these requirements were not necessary in Lozada. Compean also established that "if any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the document's contents in his affidavit." Therefore, the only requirement that could not have been waived was the petitioner's affidavit. Id. at 735-36.

147This requirement aimed to enable the BIA "to determine whether the alleged error was actually within the scope of the lawyer's representation. After all, the mere fact that a lawyer failed to do something" for example, file a petition for review does not, by itself, establish that the lawyer's conduct was deficient because the alien may not have retained the lawyer for that purpose." This requirement was established in the Lozada test as well. See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988) (noting that the alien ¨Dhas not alleged, let alone established, that former counsel ever agreed to prepare a brief on appeal or was engaged to undertake the task"); see also, e.g., Beltre-Veloz v. Mukasey, 533 F.3d 7, 10 (1st Cir. 2008) (holding that the petitioner's motion to reopen had a "fatal flaw"¬ in that it ¨Dmakes no mention of the nature, scope, or substance of the petitioner's arrangement with [his lawyer], nor does it indicate what communications the petitioner had with the attorney over the years"). Id. at 736.

148This requirement gives the former lawyer, whose professional competence is being questioned, an opportunity to present his side of the story and helps to ensure that the Board has the facts necessary to render an informed judgment. This is not a new requirement. As the BIA recognized in Lozada, "this requirement also has the effect of discouraging baseless accusations because the potential for abuse is apparent where no mechanism exists for allowing former counsel, whose integrity or competence is being impugned, to present his version of events if he so chooses." Matter of Lozada, 19 I&N Dec. at 639.

149This requirement, like the preceding one, discourages baseless accusations and collusion, because it is one thing to file a motion that, even if denied, has the effect of delaying removal and another thing altogether to back that motion with the weight of a disciplinary complaint. Matter of Lozada, 19 I&N Dec. at 639 (noting that the "bar complaint requirement acts as a protection against collusion between counsel and client to achieve delay in proceedings"). As the Board has explained, the requirement increases our confidence in the validity of the particular claim, reduces the likelihood that an evidentiary hearing will be needed, and serves our long-term interests in monitoring the representation of aliens by the immigration bar. Id.; cf. 65 Fed. Reg. at 39, 514-15; 73 Fed. Reg. at 76, 915. However, there is a difference between Lozada and Compean; under Compean ¨Dthe alien need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required. The new approach required only that the alien submit to the BIA a completed and signed but unfiled complaint, and leaving it to the BIA whether to refer the complaint to the State bar or to the Executive Office for Immigration Review disciplinary counsel for further action or not. Id. at 737-38.

150For example, if the alien's claim is that his former lawyer failed to submit a brief to the Board, he must submit, in substance and detail if not in form, a copy of the brief that he alleges should have been filed. If the alien's claim is that his former lawyer failed to introduce certain evidence or testimony, he must submit that evidence (directly in the case of physical or documentary evidence and through a witness's affidavit in the case of testimony) to the Board . . . Requiring aliens to submit such material to the Board will reduce delays and promote finality by ensuring that the Board can resolve most deficient performance claims without remanding for evidentiary hearings . . . In addition, requiring proof that an alien told his lawyer about evidence or testimony or had a good reason for failing to do so is common sense. Mukasey reasoned that for instance, if an alien never shared the existence of certain evidence or testimony with his lawyer, it is difficult to fault the lawyer for failing to submit that evidence or testimony to the immigration judge. Id. at 738.

151This requirement which is analogous to court of appeals rules requiring lawyers to attest to the existence of circuit splits of or to questions of exceptional importance in petitions for rehearing en banc, see e.g., Circuit Rule 35.1 (2008); Federal Circuit Rule 35(b) (2008) will further discourage meritless claims by serving as a reminder that challenges to the performance of another lawyer should not be made lightly. Id at 738-39.

152Matter of Compean II, 25 I&N Dec. 1 (BIA 2009) (vacating Matter of Compean).

153Based on the great importance, Holder held that he does not believe that the process used by Attorney General Mukasey in Matter of Compean "resulted in a thorough consideration of the issues involved, particularly for a decision that implemented a new, complex framework in place of a well-established and longstanding practice that had been reaffirmed by the Board in 2003 after careful consideration" Id. at 2. Attorney General meant Matter of Assaad, in which not long ago the BIA reaffirmed the right for reopening a case in when there is ineffective assistance of counsel. See Matter of Assadd, 23 I&N Dec. 553, 554 (BIA 2003).


155Holder's idea is that "after soliciting information and public comment, through publication of a proposed rule in the Federal Register, from all interested persons on a revised framework for reviewing claims of ineffective assistance of counsel in immigration proceedings, the Department of Justice may, if appropriate, proceed with the publication of a final rule" Id. In further statements, Holder held that "the integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel, and the Department of Justicees rulemaking in this area will be fair, it will be transparent . . . .. See Eviatar, supra note 14.

156Id. at 3. It is important to note that what the Attorney General intended was the same status quo as before Matter of Compean; therefore, the circuits that had been applying Lozada would continue, the circuits applying a hybrid Lozada would continue doing so, and in the circuits that do not recognize a claim for ineffective assistance of counsel and follow Afanwi would continue to do so as well.

157Id. That means that Attorney General Holder left "open the possibility that the government or future administrations might still continue to press such claims in federal courts, depending on the circumstance" See Spenser S. Hsu, Holder Says Immigrants Can Appeal Removal Orders Over Lawyer Errors, WASH. POST, June 4, 2009. See also Matter of Compean II, 25 I&N Dec. 1, 3 (BIA 2009)

158Id. This part of Holderes decision was viewed as a good first step in recognizing the importance of an immigrant's rights in deportation proceedings and a hope of a new guideline based on fundamental principles of fairness. See Martha Neil, Immigrants Can Reopen Deportation Cases If Effective Counsel is Denied, AG Holder Rules, ABA J., June 3, 2009. With regard to the three cases at issue in Matter of Compean, Holder found that, "for the reasons stated by the Board, its orders denying reopening of the three matters . . . were appropriate under the Lozada framework and standards as established by the Board before Compean" On that, Holder concurred with Mukasey's decision affirming the BIA's decisions denying reopening of these matters. See Matter of Compean II, 25 I&N Dec. at 1; supra notes at 93, 94, and 95. Id.

159See 8 U.S.C. 1229a (b)(4)(A) (2006). See also 8 C.F.R. 1003.16(b) (2008).

1608 U.S.C. 1229a (b)(4)(A) (2006).

1618 C.F.R. 287.3(c) (2008).

162See Brief for American Immigration Law Foundation as Amicus Curiae in Matter of Compean, at 20-21.

163See Sanchez v. Keisler, 505 F.3d 641, 649 (7th Cir. 2007) (holding the attorneyes performance was so deficient that Sanchez did not have the fair hearing to which the immigration statutes entitle her); Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008) (because the attorneyes conduct so clearly ran afoul of the standard embodied in Matter of Grijalva, the court need not pursue the issue of due process); Matter of Grijalva, 21 I&N Dec. 472, 474 (BIA 1996) (because counsel blatantly misled Grijalva regarding his need to appear for his hearing, Grijalva's failure to appear was the result of "exceptional circumstances" pursuant to [then] 242(B)(c)(3) of the INA). See id. at 21.

164Justice Marshall was a dissenting opinion. In his view, there was sufficient state involvement to satisfy the requirements of the Fourteenth Amendment.. Wainwright v. Torna, 455 U.S. 586, 590 (1982). He argued that [t]he majority's position is inconsistent with Cuyler v. Sullivan, 446 U.S. 335, 335 (1980). In that case, the Court rejected the petitioner's assertion that the failings of retained counsel at a criminal trial could not provide a basis for federal habeas corpus relief, because his conduct does not involve state action. It held that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty.. Id. [T]he State's conduct of a criminal trial itself implicates the State in the defendant's conviction.. Id. at 344-55; Wainwright, 455 U.S. at 590.

165See Glen, supra note 16, at 3.

166Daniel Nasaw, US Immigrants Facing Deportation Have No Right to an Effective Attorney., GUARDIAN NEWS & MEDIA LIMITED, January 9, 2009 (on file with author).

167Brief for American Immigration Law Foundation as Amicus Curiae in Matter of Compean, at 22.


169A waiver is "an intentional relinquishment or abandonment of a known right or privilege". Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Walters v. Reno, 145 F.3d 1032, 1037-38 (9th Cir. 1998), cert. denied 119 S.Ct. 1140 (1999). Id..

170See Fuentes v. Shevin, 407 U.S. 67, 94, n.31 (1972); Orantes-Hernandez v. Smith, 541 F. Supp. 351, 376-77 and n.31 (C.D. Cal. 1982) (for the purposes of applying the presumption against waiver, the civil character of deportation proceedings makes no difference, and statutory rights as well as constitutional rights are protected against unknowing waiver); Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1506 (C.D. Cal. 1988), aff'd sub nom Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990). Id.

171United States v. Mendoza- Lopez, 481 U.S. 828, 839 (1987).

172Id. at 840.

173United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1085 (9th Cir. 1996).



176United States v. Proa-Tovar, 975 F.2d 592, 593 (9th Cir. 1992) (en banc).

177Brief for American Immigration Law Foundation as Amicus Curiae in Matter of Compean, supra note 163, at 23.

178Mendoza-Lopez, 481 U.S. at 839-40.

179It is, of course, within the BIA‘s authority to reopen cases based on ineffective assistance, even if neither a statute nor the Constitution requires the BIA to do so. See Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001).

180See Maritza I. Reyes, The Latino Permanent Resident Removal Cases: A Case Study of Nicaragua and a Call for Fairness and Fairness and Responsibility in the Administration of U.S. Immigration Law, 11 HARV. LATINO L. REV. 279, 316 (2008).

181See Mustata v. U.S. Dep‘t of Justice, 179 F.3d 1017, 1022 (6th Cir. 1999); Castaneda-Suarez v. INS, 993 F.2d 142 (7th Cir. 1993); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986).

182See Werlin, supra note 3, at 404.


184When the author was working as a FBF fellow in the Florida Immigrant Advocacy Center in Miami (FIAC), he realized that in some cases the IJ's office directly contacted non-profit institutions and requested that they represent persons already in removal proceedings but with a relief available. For example, a Mexican national in removal proceedings in the Immigration Court in Miami was referred to FIAC by an IJ because he was potentially available to obtain a U-visa. The IJ ordered a motion to continuance while the visa was processed.

185See Aguilera-Enriquez v. INS, 516 F.2d 565, 568 (5th Cir. 1975).


187See Black, supra note 2, at 290.

188Cash v. Culver, 358 U.S. 633, 637 (1959).

189The abolition of the "case-by-case approach" in criminal matter was in 1971 with Argersinger v. Hamlin, 407 U.S. 25, 37-8 (1972).

190The National Immigration Justice Center approach is interesting in that the argument of the cost of this measure would not be that significant because it would increase the efficiency in the functioning of the immigration courts, and the government would save some of the cost ($70 to $100 per day) of immigration detention. Comment from Charles Roth, director of litigation at the National Immigrant Justice Center. See also Kerwin, supra note 7, at 5.

191See James Dunworth, Assessing the Fundamental Fairness Doctrine in American Case Law: Is it Still Viable, HELIUM, Nov. 20, 2009 (citing Rochin v. California, 342 U.S. 165 (1952)).

192See Michael E. Lubowitz, The Right of Choice After Wheat v. United States: Whose Choice is It 39 AM. U.L. REV. 437, 442 (1990). See also Hurtado v. California, 110 U.S. 516, 535-6 (1884) (Due Process Clause protects the very substance of individual's "rights to life, liberty, and property").

193See Robert R. Baugh, Applying the Bill of Rights to the States: A Response to William P. Gray, Jr., 49 ALA. L. REV. 551, 574 (1998).

194Powell v. Alabama, 287 U.S. 45, 73 (1932).

195See Baugh, supra note 194 at 575.

196In 2008 the immigration courts granted 10,743 asylum claims and denied 13,199 (45% granting rate). Supra note 5, at K2. Asylum-seekers are three times more likely to obtain asylum if they have legal representation. Therefore, some petitioners eligible for asylum may face persecution or death after deportation was erroneously denied due to lack of counsel. John R. Mills, Kristen M. Echemendia, and Stephen Yale-Loehr, "Death is Different" and a Refugee's Right to Counsel, Cornell Legal Studies Research Paper No. 1290382 available at (Last visited Oct. 29, 2009).

197See TRAC Immigration, Immigration Judges, available at immigration/reports/160/ (last visited Nov. 20, 2009). See also Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, The Refugee Roulette: Disparities in Asylum Adjudications, 60 STAN. L. REV. 295, 300 (2007) (in recent years the public and the media have become "skeptical about the extent to which American judging reflects only the law. and not their liberal or conservative predilections. In immigration matters is the same, there is a big disparity nationwide in regards asylum adjudications).

198Investigation inside the immigration judges chambers shows the frustrations of IJ's based on their work load-time demands, the infrastructure problems, the psychological issues that they suffer, the high level of criticism and scrutiny, and finally the difficulties in discovering fraudulent petitions. Some immigration judges argue that their mistakes would be reduced with the improvement of these lacks. One of the problems, for the majority of immigration judges, is the "high degree of fraud and/or incompetency by legal counsel" (bad lawyers). See Stuart L. Lusting et al., Inside The Judges Chambers: Narrative Responses From the National Association of Immigration Judges Stress and Burnout Survey, 23 GEO. IMMIGR. L. J. 57, 67 (2008).

199For example, Judge Julio M. Fuentes of the Third Circuit in Wang v. Att'y Gen., 423 F.3d 260, 268 (3rd Cir. 2005), held that there was a "disturbing pattern of IJ misconduct. by an abusive Immigration Judge. See Christopher Nugent, Ensuring Fairness and Due Process for Noncitizens in Immigration Proceedings, 36 HUMAN RIGHTS 18 (2009). See also Gabriel Pacyniac, Current Development: Judicial Branch: Controversy Reemerges Over Hiring, Review of Immigration Judges, 22 GEO. IMMIGR. L. J. 805, 806 (2008) (Attorney General's office takes political factors into account in the appointment of Immigration Judges. Judge Richard A. Posner "excoriated the immigration court system and concluded that adjudication of immigration cases at the administrative level has fallen below minimum standards of legal justice").

200Garcia v. INS, 208 F.3d 725 (9th Cir. 2000).

201Id. at 727.




205Id. at 735.

206Id. at 729-35.

207The petition was submitted by the Catholic Legal Immigration Network Inc., the National Immigration Forum, the National Immigration Justice Center, the Northwest Immigrant Rights Project, and the Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College. See Marcia Coyle, New Push for Court-Appointed Counsel in Immigration Cases, THE BLT, July 2, 2009.



210Motomura meant that having bad representation could be worse than not having representation. See Sandra Hernandez, Decision Curbs Immigrants’ Right to Lawyer, DAILY J., Jan. 9, 2009. See also The Harvard Law Review Association, A Second Chance: The Right to Effective Assistance of Counsel in Immigration Removal Proceedings, 120 HARV. L. REV. 1544, 1560 (2007). (Perversely there are situations in which it would be better for an alien to proceed "pro se" than hire an ineffective lawyer).

211See Matter of Compean, 24 I&N Dec. at 710.

212Matter of J.E.C.-M (A79-506-797/798/799/800) (BIA Oct. 19, 2007).


214Id. (emphasis added).

215Matter of Compean, 24 I&N Dec. at 716.

216Id. at 742-43.

217Moya-Garcia v. Holder, Order No 04-74293 (9th Cir. 2009). (The order states that the disposition is not appropriate for publication and it is not a precedent as provided by 9th Cir. R. 36-3).

218Matter of Compean II, 25 I&N Dec. 1, 3 (BIA 2009).

219Lozada does not consider the issue of ineffective assistance from non-attorneys. Compean extended ineffective assistance to non-lawyers only when the alien reasonably but erroneously believed that he or she was a lawyer. Matter of Compean, 24 I&N Dec. at 711. Although the damages in immigration proceedings caused by the commonly known "notarios" due to their lack of knowledge of immigration law is well known, courts applying Lozada have held that because the immigrant choose to accept the advice of those non-attorneys (people unauthorized to practice law), such a voluntary choice does not support a due process claim. See 8 C.F.R. 1292.1(a)(3)(iv) (2009) (establishing the only persons allowed to represent immigrants in immigration proceedings). See also Trott Clifton, 9th Cir. Holds No Lozada Innefective Assistance. by Misadvise of Non-Attorneys, NATIONAL IMMIGRANT JUST. CENTER, June 10, 2009 (on file with author).

220See The Honorable Carlos T. Bea, U.S. Court of Appeal for the Ninth Circuit, Address to the IJs and the BIA (Aug. 10, 2007), in 12 BENDER'S IMMIGR. BULL. 1357, 1361 (2007).

221Florida Bar v. Alvarez, Case No SC06-940 (2007).

222See Michael S. Vastine, Is Your Client Prejudiced? Litigating Ineffective-Assistance-of-Counsel Claims in Immigration Matters Arising in the Eleventh Circuit, 62 U. MIAMI L. REV. 1063, 1081-82 (2008).


224See Powell v. Alabama, supra note 195, at 71.

225Matter of Compean, supra note 10, at 1. See also Liadov v. Mukasey, 518 F.3d 1003, 1009-10 (8th Cir. 2008) (Congress in recent years has taken repeated action to expedite removal proceedings and curb perceived abuses).

226Rebecca Fledmann, What Constitutes Exceptional? The Intersection of Circumstances Warranting Reopening of Removal Proceedings After Entry of an In Absentia Order of Removal and Due Process Rights of Noncitizens, 27 WASH. U. J.L. & POL‘Y 219, 244 (2008).


228Matter of Compean, 24 I&N Dec. at 716.

229See Fledmann, supra note 227 citing Matter of J-P, 22 I&N Dec. 33 (BIA 1998) and Matter of B-A-S-, 22 I&N Dec. 57 (BIA 1998) (requiring for claims of "serious illness" that the non-citizen submit affidavits from medical personnel, family and/or friends with knowledge of the illness, and /or affidavits from an employer attesting to the fact of the absence from work of the non-citizen due to illness).

230Matter of Compean, 24 I&N Dec. at 719.

231The exceptions to this view are the Second and Ninth Circuits. For these Circuits, the fact that the relief requested is discretionary does not absolve the agency from providing due process. See, e.g., Reyes-Melendes v. INS, 342 F. 3d 1001, 1006, 1008 (9th Cir. 2003) (reversing suspension of deportation denial on due process grounds and noting that "a due process violation is not an exercise of discretion").

232See Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611, 637 (2006). In his article Professor Neuman presents a very thorough analysis of the complexity of the current treatment by the majority circuits of the discretionary relieves as none due process protected.

233It is well established that a resident alien in removal (expulsion) deserves due process of law, but aliens arriving seeking admission, in removal (expulsion) does not amount due process of law. The exception is the alien resident looking for re-admission (coming from a visit abroad); in those cases the aliens must receive due process of law. See United States ex.rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); and Landon v. Plassencia, 459 U.S. 21 (1982).

234See Neuman, supra note 233, at 636.

235Id. at 640.

236Although most of the immigration law community demonized Matter of Compean, a few authors agree in that there are some good aspects in the framework proposed in Compean. See Ragland, supra note 19.

237See Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners¡ªRules and Procedures, and Representation and Appearances, 73 FED. REG. 44, 178 (July 30, 2008) (¨DUnder the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline¡¬).

238Matter of Compean, 24 I&N Dec. at 711.



241See Ajmel Quereshi, Hope for Change in Immigration Policy: Recommendations for the Obama Administration, 16 HUM RTS. BR. 19, 20 (2009). See also Letter from AILF and others, to Eric Holder, Attorney General (Feb. 6, 2009) (requesting AG Holder to vacate Matter of Compean) (copy on file with author).

242It was also a good idea for the EOIR to propose a rule that will be published for public consideration. The entire immigration community looked with "good eyes" as AG Holder proposed that the immigration community cooperate in formulating a final policy.

About The Author

Jean Pierre Espinoza A Peruvian attorney and LLM in Comparative Law with certification in International Trade and Business Law by the University of Florida‘s Levin College of Law. Juris Doctor Candidate and president of the Immigration Law Student Association at Stetson University College of Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.