Mr. Lee's Article "Motions to Reopen Based on Ineffective
Assistance of Counsel Viable Again"
By Alan Lee, Esq.†‡
Aliens with final orders of exclusion, deportation, or removal
may once again be able to overturn them on the basis of ineffective
assistance of counsel. Attorney General Eric Holder vacated the
midnight ruling of Matter of Compean, 24 I&N Dec. 710
(AG 2009), vac. 25 I&N Dec.1 (AG 2009), on June 3, 2009, and
reestablished the standard of Matter of Lozado, 19 I&N
Dec. 637 (BIA 1988), for the time being. Under Lozado,
a claim of ineffective assistance of counsel could be made where
1.) the motion is supported by an affidavit of the alien setting
forth in detail the agreement that was entered into with counsel
with respect to the actions taken and what representations counsel
did and did not make to the alien in this regard, 2.) counsel whose
integrity or competence is being impugned is informed of the allegations
leveled against him and given an opportunity to respond, and 3.)
the motion reflects whether a complaint has been filed with appropriate
disciplinary authorities with respect to any violation of counsel's
ethical or legal responsibilities, and if not, why not. The Compean
case, decided by former Attorney General Michael Mukasey during
his last days in office, overturned Lozado on the basis
that aliens had no constitutional right to legal counsel. In vacating
the Compean decision, Attorney General Holder directed the Board
of Immigration Appeals and immigration judges to continue to apply
previously established standards for reviewing motions to reopen
pending the outcome of the rulemaking process. Mr. Holder stated
that because it was not necessary to decide whether there was a
constitutional right to effective assistance of counsel in removal
proceedings to decide the cases before the Board under pre-Compean
standards or to initiate a rulemaking process, his order would vacate
Compean in its entirety. Mr. Holder also gave a boon to aliens in
further stating that, although the Board itself had never resolved
whether its discretion to reopen removal proceedings included power
to consider claims of ineffective assistance of counsel based on
the conduct of counsel that occurred after a final order of removal
had been entered, the question would be resolved favorably on the
side of aliens pending issuance of a final rule.
As to whether a final rule is inevitable, the Attorney General
left open that question by saying that the Department of Justice
may if appropriate proceed with the publication of a final rule
after soliciting information and public comment for 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 withdrawal of Compean does not mean of course that all cases
involving ineffective assistance of counsel can now be won, but
it does give a clear chance to those who have a case for reopening
under pre-Compean law. Questions in all Lozado cases must
still be addressed such as meeting the appropriate deadlines of
90 days of a final order of removal or 180 days where the alien
did not appear for the hearing or else leaving it to the discretion
of U.S.I.C.E. and the immigration judges or Board to contest the
timeliness of the filing; determining when the countdown to 90 or
180 days begins where counsel's ineffective assistance was hidden;
working on cases where the alien has not complied with all the Lozado
requirements; dealing with situations where ineffective assistance
of counsel is through a non-lawyer's incompetence or fraud; or attempting
to excuse the alien's late filing under the doctrine of equitable
tolling and if so, whether the alien exercised reasonable diligence
during the period sought to be tolled, etc.
The Attorney General's action is a further repudiation of some
of the immigration abuses of the Bush Administration and a highly
encouraging sign of where Mr. Obama wants to lead the immigration
debate.
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