Ineffective Assistance of Counsel

Immigrants are sometimes forced to suffer the consequences of fraud by unscrupulous lawyers or inadvertent mistakes by otherwise competent lawyers. Such fraud and mistakes may deprive them of the opportunity to defend against deportation. Although the government has recognized the need for a remedy for ineffective assistance of counsel, the framework currently used to evaluate whether ineffective assistance has occurred is severely flawed. The LAC has long worked to protect the right of noncitizens in removal proceedings to seek a remedy for ineffective assistance of counsel.

CASES | ADVOCACY | RESOURCES

CASES

Matter of Compean, 24 I&N Dec. 710 (A.G. 2009), vacated by 25 I&N Dec. 1 (A.G. 2009).  At the invitation of the Attorney General, the LAC filed an amicus brief on October 6, 2008.  On January 7, 2009, the Attorney General issued the first Matter of Compean decision, which reversed decades of precedent securing the right to effective assistance of counsel. Read our statement about the decision. Subsequently, the LAC (joined by numerous organizations and individuals) urged the Attorney General to reconsider the case. On June 3, 2009, the Attorney General issued the second Compean decision, vacating the prior decision. Read our statement about the second decision. 

Afanwi v. Mukasey, 526 F.3d 788 (4th Cir. 2008) (upholding the BIA’s finding that it lacked jurisdiction to reopen a case based on ineffective assistance of counsel because the ineffectiveness occurred after the completion of proceedings). The LAC filed an amicus brief on July 18, 2008 in support of rehearing. Although the court denied the petition for rehearing, subsequently, the Supreme Court granted a petition for certiorari, vacated the Fourth Circuit’s judgment, and remanded the case to the Fourth Circuit in light of the government’s position that the Attorney General had favorably resolved this issue in the second Matter of Compean decision. Afanwi v. Holder, 130 S. Ct. 350 (2009).

Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) (affirming the right to seek a remedy for ineffective assistance of counsel).  At the request of the BIA, the LAC submitted several amicus briefs urging the BIA to affirm the right to seek a remedy for ineffective assistance of counsel and to adopt a more flexible procedure for bringing an ineffective assistance of counsel claim.

ADVOCACY

Letter to EOIR recommending steps the agency can take to protect the right to effective assistance of counsel (submitted Nov. 12, 2009). Read our statement regarding the letter.

RESOURCES

LAC Litigation Issue Page: Ineffective Assistance of Counsel