Attorney General Finds No Right to Counsel in Removal Proceedings

In the midnight hours of the Bush Administration, former Attorney General Michael Mukasey overruled decades of precedent and ruled that aliens have no constitutional right to challenge the outcome of their deportation hearings based on their lawyers’ errors.   In his 33-page decision,  Matter of Compean, 24 I & N Dec. 710 (A.G. 2009), he overruled the Board of Immigration Appeals’ decisions in Matter of Lozada, and Matter of Assaad, finding that there is no Fifth amendment right to counsel in removal (deportation) proceedings.  This decision drastically undermines an alien’s due process rights under the Constitution in a proceeding that has tremendous life-altering consequences. 

For decades, the BIA and most federal courts have supported the notion that immigrants are guaranteed competent counsel in deportation proceedings based on the Fifth Amendment’s guarantee of due process.  Removal is considered a civil, and not criminal, proceeding.  However, the federal courts have still found a constitutional right to competent counsel based on the guarantee of due process under the Fifth Amendment.  Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005); Olvera v. INS, 54 F.2d 1372 (5th Cir. 1974). 

In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the leading case on claims of ineffective assistance of counsel, the Board held that in order for an alien to reopen his removal proceedings based on the lawyer’s error, the alien must establish that his lawyer’s failings had been “egregious”, and that he had been prejudiced by his lawyer’s performance.  The BIA established three criteria for an ineffective assistance of counsel claim to reopen removal proceedings.  The claim must:  (1) have a motion supported by an affidavit setting forth the agreement and representations by the counsel; (2) inform the counsel against whom the claim is made and give counsel an opportunity to respond; and (3) disclose in the motion whether a bar charge has been filed, and if not, why not. 

In Matter of Compean, the AG states that there was a growing split among federal courts over whether aliens had a right to counsel in removal proceedings and that it was necessary to review the law in this arena.  The AG concluded that aliens in removal proceedings have no right to counsel under the Sixth Amendment because removal proceedings are civil, and not criminal in nature.  Also, the AG found that aliens in removal proceedings have no right to counsel under the Fifth Amendment.  He reasoned that although the Fifth Amendment does encompass removal proceedings, its due process protections do not include a general right to counsel or any other specific right to effective assistance of counsel.  Further, he held that the Fifth Amendment’s due process clause is only violated by state action, not a private attorney’s action.  However, granting some level of relief, the AG stated that the government can, as a “matter of discretion”, reopen removal proceedings where the alien was prejudiced because of egregious actions of a private attorney, which changed the outcome of the case.

According to the AG, this discretion is informed by balancing the speedy disposition of cases with justice:  “There is a strong public interest in ensuring that these [lawyer] deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. . .  At the same time, it is important to recognize that there is a strong public interest in the expeditiousness and finality of removal proceedings, an interest that Congress has repeatedly emphasized through legislation imposing time limits and curbing discretionary relief.  Groundless and dilatory claims can tie up the system and postpone the alien’s removal for years.” Id. 728-29.

Matter of Compean undermines an immigrant’s right to a fair hearing before the immigration court and thwarts the federal courts’ role in protecting immigrants against abuses in the immigration courts.  This is especially dire in light of the many questions about the integrity of immigration courts’ decisions and allegations of political cronyism against them, according to the American Immigrations Lawyers Association.  Furthermore, because immigration law at its heart is a labyrinth of complicated rules and regulations, it is necessary that immigrants are guaranteed effective legal representation to navigate them.  Unfortunately, oftentimes immigrants are the prey of unscrupulous and fraudulent attorneys, non-attorneys and notaries.   Matter of Compean gives the green light to such schemes and incompetence.