Wednesday, January 7, 2009

AG Overrules Lozada and Assaad

On his way out the door, Attorney General Mukasey is leaving with a bang.

Matter of Compean, Bangaly, JEC, 24 I&N Dec. 710 (A.G. 2009) ID #3632

(1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no expense to the Government.

(2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.

(3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is
violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad,
23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled.

(4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.

(5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an alien’s motion to reopen and accompanying documents alone. Whether an alien has made a sufficient showing to warrant relief based on counsel’s allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge.

(6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings.

(7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he
exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been
entitled to the ultimate relief he was seeking.

(8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying the lawyer’s deficient performance and a copy of the lawyer’s response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to
submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. 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. Matter of Lozada, superseded.

(9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied.


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I disagree with Mr. Wheeler - I think this is a TERRIBLE decision.

Now when a court is faced with a Lozada motion they also have to examine the merits of the underlying case, even though one of the ways in which ineffective counsel often hurt their "clients" is through failing to develop an adequate record of proceedings! Not only is this going to take up more of the immigration courts' precious time, it will be a necessarily imprecise (if not impossible) task.

As for the idea that aliens can enter a malpractice suit against their attorney, and the pie-in-the-sky dream that such suits will improve the quality of representation...that's simply foolishness. People of limited means are going to engage in an expensive civil suit after they've been removed to a foreign country? And that threat will stop notarios from duping people? Ha. Lozada motions already require that the alien have filed a complaint against the former counsel in an appropriate venue, so it's not as if there are no repurcussions against incompetent attorneys or con artists as things stand currently.

I'd like to see some basis for the idea that aliens "intentionally retain an incompetent attorney." Presuming that an alien is savvy enough to know what attorneys are "incompetent," wouldn't they then be savvy enough to know they were simply delaying the inevitable and paying out all those extra lawyer fees (which are often exhorbitant)? I don't see how that's much of an "incentive," and personally I haven't seen any evidence that aliens are INTENTIONALLY retaining bad counsel.

Posted by: Sarah | Jan 8, 2009 6:47:01 AM

This decision is appalling - in addition to the previous commenter's excellent posts, this removes a possible avenue for immigration attorneys to police themselves. Threatening a Lozada claim against a previously ineffective attorney can help liberate information and tactics from a previous file, to say nothing of helping to eliminate the threat of a deliberately incompetent attorney. One can only hope Pres. Obama's candidate withdraws this ruling immediately.

Posted by: Cara | Jan 15, 2009 2:05:45 PM

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