The U.S. Attorney General Michael B. Mukasey (AG) recently issued notice that he will review three Board of Immigration Appeals (Board) cases from last spring on the issue of right to effective counsel before an immigration judge (IJ) or the Board. The Board decisions in the unpublished matters, Matter of J-E-C-M-, Matter of Bangaly, and Matter of Compean, are all stayed pending the AG’s review.
Although there is no Sixth Amendment right to counsel in removal/deportation proceedings, courts recognize that ineffective assistance of counsel in such proceedings is a denial of due process if the proceeding was so fundamentally unfair that the foreign national was prevented from reasonably presenting his case. Therefore, a foreign national may be granted a new hearing if he shows that his prior counsel’s performance was so ineffective that it prejudiced his case and deprived him of his due process rights to a fair hearing.
Twenty years ago, in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the Board of Immigration Appeals laid out threshold requirements that an aggrieved party must meet to support an ineffective assistance of counsel claim. In particular, the respondent 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.
In that case, the immigration judge found Lozada removable and ordered him deported to the Dominican Republic. Lozada filed a timely Notice of Appeal and indicated that he would file a separate written brief or statement in support of his appeal. His attorney, however, never filed the brief. Over a year later, the Board dismissed the appeal, noting that Lozada failed to explain the immigration judge’s errors in any meaningful way. Through new counsel, Lozada then filed a motion to reopen his removal proceedings with the Board, alleging that his prior counsel’s failure to submit a written brief or statement explaining the basis for appeal constituted ineffective assistance of counsel. The Board denied the motion, noting that it did not meet the threshold requirement and that no prejudice was shown to have resulted from prior counsel’s failure to file a brief. The Board found that Lozada received a full and fair hearing and was given every opportunity to present his case.
The Board continues to use the Lozada standards to screen out frivolous ineffective assistance of counsel claims and generally will not consider the merits unless the motion first meets the threshold requirements. Furthermore, aggrieved parties must usually exhaust their administrative remedies by first filing a motion to reopen with the Board before seeking appellate court review of an ineffective assistance of counsel claim. The appellate courts also expect the aggrieved parties to follow the Lozada guidelines. As a result, while there is a substantial number of ineffective assistance of counsel claims for the Board and appellate courts to review, they are not frequently granted.
In choosing to review whether a foreign national has a right to effective counsel in removal proceedings, the AG has requested that the parties in the three Board cases brief the following issues:
1. Is there a constitutional right to effective assistance of counsel in proceedings before an immigration judge or the Board of Immigration Appeals?
2. If there is no constitutional right to effective assistance of counsel in proceedings before an immigration judge or the Board,
(i) is there a basis for the Attorney General to grant relief under the Immigration and Nationality Act or as a matter of administrative discretion in response to assertions by an alien that his or her counsel’s performance was deficient; and
(ii) if so, in what circumstances (e.g., on issues of removability, discretionary relief) should the Attorney General make such relief available?
3. If relief based on counsel’s deficient performance may be granted under the Constitution or statute or as a matter of administrative discretion, what showing of prejudice must be made by an alien to obtain such relief?
4. Should the Attorney General modify the Lozada requirements to require that the alien:
(i) attach to his or her motion to reopen a copy of both the letter sent by the alien informing counsel of the allegations of deficient performance and counsel’s response (or an affidavit stating that no response was received);
(ii) attach to his or her motion to reopen a copy of a complaint filed with the appropriate disciplinary authorities, such as the state bar, with respect to any violation of counsel’s ethical or legal responsibilities along with an acknowledgment of receipt by the disciplinary board (or an affidavit adequately explaining why no such filing was made);
(iii) attach to his or her motion to reopen an affidavit demonstrating that he or she exercised due diligence in discovering and seeking to remedy the alleged deficient performance; and/or
(iv) attach to his or her motion to reopen an affidavit describing precisely what counsel’s failings were, submit any necessary evidence in admissible form to the Board (or immigration judge, if applicable), and explain how the alien suffered prejudice resulting from his or her counsel’s alleged deficient performance.
The parties’ briefs and amici briefs must be filed and postmarked by September 15, 2008 to be considered by the AG. Unless the AG issues a decision stating differently, aggrieved parties are expected to follow the current Lozada guidelines when bringing an ineffective assistance of counsel claim before the Board.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.