Matter of Compean, Interim Decision No. 3632.
| Citation | 24 I&N Dec. 710 |
| Decision Date | 07 January 2009 |
| Docket Number | Interim Decision No. 3632.,File A078 566 977.,File A078 555 848. |
| Parties | Matter of Enrique Salas COMPEAN, Respondent. Matter of Sylla BANGALY, Respondent. Matter of J-E-C-, et al., Respondents. |
| Court | U.S. DOJ Board of Immigration Appeals |
(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.
FOR RESPONDENT COMPEAN: Cyril Chuckwurah, Esquire, Houston, Texas.
FOR RESPONDENT BANGALY: Isuf Kola, Esquire, Glen Ellyn, Illinois.
FOR RESPONDENT J-E-C-, et al.: Robert J. Jacobs, Esquire, Gainesville, Florida.
AMICI CURIAE: Advocates for Human Rights; Massachusetts Law Reform Institute, and other organizations; National Immigrant Justice Center; American Immigration Law Foundation, and other organizations; Immigration Law Clinic at the University of Detroit Mercy School of Law; Immigrant and Refugee Appellate Center; and others.
FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting General Counsel; David A. Landau, Chief Appellate Counsel.
BEFORE THE ATTORNEY GENERAL (January 7, 2009)
On August 7, 2008, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007), I directed the Board of Immigration Appeals ("Board") to refer to me for review its decisions in the above-captioned cases, and I invited the parties and any interested amici to submit briefs addressing the questions I planned to consider on certification.
For the reasons set forth in the accompanying opinion, I affirm the Board's orders denying reopening in the certified cases and overrule 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), to the extent those decisions are inconsistent with the legal conclusions and administrative framework set forth in the opinion.
OPINIONThe Supreme Court has recognized constitutional claims for ineffective assistance of counsel only where a person has a constitutional right to a Government-appointed lawyer. In contrast to a defendant in a criminal case, an alien has no right—constitutional or statutory—to Government-appointed counsel in an administrative removal proceeding. Compare section 240(b)(4)(A) of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. § 1229a(b)(4)(A) (2006) (), and section 292 of the Act, 8 U.S.C. § 1362 (2006), with U.S. Const. amend. VI (), and Gideon v. Wainwright, 372 U.S. 335 (1963). The question before me is whether, notwithstanding the absence of a constitutional right to a Government-appointed lawyer, there is nevertheless a constitutional right to effective assistance of counsel in removal proceedings. More specifically, the question is whether the Constitution entitles an alien who has been harmed by his lawyer's deficient performance in removal proceedings to redo those proceedings.
In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) ("Lozada"), the Board of Immigration Appeals ("Board") responded to an alien's constitutional claim of ineffective assistance of counsel by assuming, consistent with the earlier rulings of two Federal courts of appeals, that an alien "may" have a constitutional right to effective assistance of counsel under the Due Process Clause of the Fifth Amendment. Id. at 638. Having thus accepted the potential existence of such a right, the Board's decision established three threshold requirements—commonly known as the "Lozada factors"—that an alien must satisfy to reopen his removal proceedings on the basis of lawyer error. The Board revisited these issues 15 years later in Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) ("Assaad"), in response to a claim from the Immigration and Naturalization Service ("INS") that Supreme Court precedent in criminal and habeas cases undermined the notion of a constitutional right to effective assistance of counsel in removal proceedings. The Board acknowledged "some ambiguity in the basis set forth in [Lozada] for [aliens] to assert ineffective assistance claims," but declined to overrule its prior decision. Id. at 558. Among the reasons cited by the Board, one loomed large: "[S]ince Matter of Lozada was decided 15 years ago, the circuit courts have consistently continued to recognize that . . . [an alien] has a Fifth Amendment due process right to a fair immigration hearing and may be denied that right if counsel prevents the respondent from meaningfully presenting his or her case." Id. (citing cases).
Five years later, that condition no longer holds, as several courts of appeals, relying on the same Supreme Court precedent that the INS had cited in Assaad, have rejected the proposition that there is a constitutional right to the effective assistance of counsel in removal proceedings. See, 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 ...
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