Ineffective Assistance of Counsel

This Litigation Issue Page provides information related to Matter of Compean I and II, the Attorney General decisions regarding seeking a remedy for ineffective assistance of counsel in removal proceedings. In the first Compean decision, former AG Mukasey said that there is no constitutional or statutory right to a remedy for ineffective assistance of counsel, but that immigration judges have discretion to reopen cases where counsel’s “deficient performance” prejudiced the client. That decision subsequently was vacated by AG Holder.

Latest Developments -- listed in reverse chronological order|Additional Resources

Latest Developments -- listed in reverse chronological order

The Immigration Council, AILA Submit Recommendations for Protecting the Right to Effective Assistance of Counsel

The Immigration Council and the American Immigration Lawyers Association sent a letter to the Executive Office for Immigration Review recommending steps the immigration courts and the Board of Immigration Appeals can take to protect the right to effective assistance of counsel and help ensure that noncitizens in removal proceedings are afforded a fair hearing. Read our statement and the letter.

AG Holder Withdraws Compean Decision

On June 3, 2009, AG Holder vacated the decision in Matter of Compean. The June 3 decision directs the immigration judges and BIA to apply pre-Compean standards to motions to reopen based on ineffective assistance of counsel. It also directs EOIR to initiate a rulemaking procedure to evaluate the Lozada framework and to determine what modifications should be proposed for public consideration.

AG Holder Says That He Soon Will Issue His Decision on Matter of Compean

On May 14, 2009, AG Holder testified before the House of Representatives Judiciary Committee that he soon will be issuing his opinion on Matter of Compean. He indicated that he has completed his review of the matter.

Respondents, AILF and Other Amici Urge Holder to Vacate and Reconsider Matter of Compean

On February 3, 2009, Respondents filed a motion to reconsider in Matter of Compean. The motion asks AG Holder to vacate former AG Mukasey's decision and set a briefing schedule for further consideration of the issues. AILF and other organizations, law firms and individuals submitted a letter in support of the motion to reconsider. In addition, the ACLU and the ABA also submitted letters in support of reconsideration.

On February 17, 2009, DHS filed an Opposition to the Motion to Reconsider.

DHS' Opposition to Respondents' Motion to Reconsider

AG Holder Says He Intends to Reexamine Matter of Compean

In response to questions submitted to him during the Senate confirmation process, new Attorney General Holder indicated that he will reexamine Matter of Compean. Specifically, he said:

"The Constitution guarantees due process of law to those who are the subjects of deportation proceeding. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General."

Question from Senator Hatch (#7)

Question from Senator Feingold (#12)

Petitioners Seek Supreme Court Review of Ineffective Assistance of Counsel Claims; Court Denies, Remands Cases

Petitioners in two 2008 cases where the circuit courts issued unfavorable published decisions on ineffective assistance of counsel sought Supreme Court review. The Court granted, vacated and remanded one case and denied the petition for certiorari in the other case.

Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008), vacated, 2009 U.S. LEXIS 6885 (U.S. Oct. 5, 2009). In Afanwi, the Fourth Circuit held that there is no constitutional right to effective assistance of counsel. In addition, the court upheld the BIA’s finding that it lacked jurisdiction to reopen the case because the ineffectiveness occurred after the completion of proceedings (the lawyer allegedly failed to notify petitioner of the decision and thus petitioner missed the deadline for filing a petition for review). In its response to the petition for certiorari, the government noted that after the Fourth Circuit decided the case, Attorney General Holder issued his decision in Matter of Compean in which he favorably resolved whether IJs and the BIA have discretion to reopen any case, regardless when the ineffectiveness occurred. The Supreme Court granted the petition for certiorari, vacated the judgment and remanded the case to the Fourth Circuit “for further consideration in light of the position asserted by the Solicitor General in her brief for the respondent….”

Jezierski v. Mukasey, 543 F.3d 886 (7th Cir. 2008), cert. denied, 129 S. Ct. 1662 (2009). In Jezierski, the Seventh Circuit dismissed the petition for review after finding that, because the petitioner in Jezierski had not alleged an infringement of a constitutional right, the court’s review was limited to rulings of law. Because the BIA made a factual determination, rather than a legal determination on the ineffectiveness question, the court said, the BIA’s decision did not confer jurisdiction on the court. The Supreme Court denied the petition for certiorari on March 23, 2009.

If you are aware of other petitions for certiorari involving ineffective assistance of counsel issues, please contact AILF at clearinghouse@immcouncil.org.

The AG Overturns Lozada, Finds No Right to Effective Assistance of Counsel
Matter of Compean, 24 I & N Dec. 710 (A.G. 2009)

The AG issued a decision on January 7, 2009, stating that persons in removal proceedings do not have a constitutional right to counsel and therefore have no right to have their cases reopened when counsel was ineffective. The decision overrules BIA decisions Matter of Lozada, 19 I & N Dec. 637 (BIA 1988) and Matter of Assaad, 23 I & N Dec. 553 (BIA 2003).

According to the AG, the Fifth Amendment's due process guarantee only applies against the government, not against a private attorney retained by a person in removal proceedings. The AG reasoned that because a person has no right to an attorney under the Fifth Amendment, he or she has no right to effective assistance of counsel and no right to reopen his or her case based on ineffective assistance.

Nonetheless, the AG said that the IJs and BIA, in their discretion, may grant motions to reopen based on a claim of counsel's "deficient performance." The AG set forth the substantive elements for such a claim and the documents that must accompany a motion to reopen based on deficient performance.

The AG stated that BIA and IJs should apply the substantive legal framework announced in the opinion as of the date of the decision. However, pending motions to reopen do not have to comply with the new filing requirements.

View AILF's detailed summary of Matter of Compean.

AILF's Response to Matter of Compean

Many people have seen and expressed concern about the Attorney General's recent decision in Matter of Compean regarding the legal and constitutional right to counsel and protection against ineffective assistance of counsel in removal proceedings. AILF's Legal Action Center has worked on issues concerning counsel in removal and deportation proceedings for many years and filed an amicus brief with the Attorney General before he issued the Compean decision.

We are analyzing the decision and reading comments posted on listservs and message boards. Working with colleagues, we will be preparing strategies for addressing the decision in all possible avenues.

We will be developing materials and guidance for those with individual cases and will be coordinating efforts on these issues. If you have cases raising these issues, please contact us at clearinghouse@immcouncil.org, and we will do our best to respond.

Additional Resources

Decisions and Briefing

Matter of Compean, 25 I&N Dec. 1 (A.G. 2009)
Matter of Compean, 24 I&N Dec. 710 (A.G. 2009)
AILF Amicus Brief in Response to AG Certification of Matter of J-E-C-M-, Matter of Bangaly, and Matter of Compean
ACLU Letter to the AG opposing the briefing schedule and the proposed change to the Board of Immigration Appeals requirements governing ineffective assistance of counsel.
ABA letter to Attorney General Mukasey opposing the briefing schedule and the proposed change to the Board of Immigration Appeals requirements governing ineffective assistance.