A Melting Pot of Rulings

Former Attorney General Michael Mukasey went out with a bang. With two weeks left in office, he issued an opinion finding that - contrary to 9th Circuit jurisprudence - aliens in removal proceedings do not have a constitutional right to effective assistance of counsel. The opinion, Matter of Compean, 24 I & N Dec. 710 (A.G. 2009), also sets new standards for discretionary ineffective assistance of counsel claims - again, standards different from those used by the 9th Circuit.

The conflict between Compean and well-settled 9th Circuit law creates a pressing issue for immigration lawyers. Compean is binding on the Board of Immigration Appeals, which generally considers ineffective assistance claims in the first instance. It is not binding on the 9th Circuit, which can review the board's denial of an ineffective assistance claim. So which authority is a lawyer to follow?

In a nutshell, lawyers should pursue both constitutional and discretionary ineffective assistance claims before the board with an eye toward 9th Circuit review, but should try to comply with the new standards set forth in Compean.

Aliens in removal proceedings have a statutory right to retain counsel of their own choosing. 8 U.S.C. Sections 1229a(b)(4), 1362. There are, of course, many skilled lawyers in the immigration bar. But sometimes aliens end up with lawyers whose conduct falls well below professional standards - for example, those who fail to gather and present relevant evidence to the immigration judge or miss critical filing deadlines. Aliens in that situation may be denied immigration relief and removed without ever really having a chance to present their case.

Given the high stakes, several federal circuits and the Board of Immigration Appeals long ago concluded that ineffective assistance of counsel may violate an alien's constitutional right to due process. The board's decision in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), reaffirmed in 2003, permits aliens who receive ineffective assistance to move to reopen their proceedings on that basis.

Basis for Constitutional Claim

An alien's constitutional ineffective assistance claim stems from the Fifth Amendment right to due process. The 9th Circuit has explained that aliens in removal proceedings have a statutory right to retain private counsel and that once they do so, they have a due process right to competent representation. See, e.g., Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008).

Competent counsel is particularly important in removal proceedings because immigration law is so complicated that aliens must rely heavily on their attorney's advice. Aliens are often particularly ill-equipped to handle their cases without an attorney: "[I]t is difficult to imagine a layman more lacking in skill or more in need of the guiding hand of counsel, than an alien who often possesses the most minimal of educations and must frequently be heard not in the alien's own voice and native tongue, but rather through an interpreter." Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. 2007). Moreover, the stakes in removal proceedings are very high: "deportation 'visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom.'"

Under 9th Circuit law, ineffective assistance violates the Fifth Amendment due process clause where it prevents an alien from reasonably presenting his case. At least five other circuits have reached a similar conclusion.

Shifting Tide

A few federal circuits have deviated in recent years from the 9th Circuit and the Board of Immigration Appeals, holding that there is no constitutional right to effective assistance of counsel in removal proceedings. Last summer, Mukasey signaled that he was considering doing the same. He instructed the board to refer Compean and two similar cases to him for review and invited briefing on the constitutional question. Highlighting the importance of the issue, more than a dozen amici responded.

Compean concludes that there is no constitutional right to effective assistance of counsel before the immigration judge or board. It overrules the board's long-standing Lozada decision and a more recent decision affirming Lozada.

At bottom, Compean reflects a concern about the ramifications of recognizing a constitutional right in this context. It suggests that doing so would logically create a right to government-appointed counsel in removal proceedings and many other types of civil proceedings. That's because removal proceedings are civil, not criminal. The Sixth Amendment right to counsel in "criminal prosecutions" therefore does not apply. The Fifth Amendment guarantees due process to all people, including aliens, in civil and criminal proceedings, but it only applies to government action. Compean emphasizes that the conduct of a privately retained lawyer does not generally qualify as state action because there is not a "sufficiently close nexus" between the private lawyer's conduct and the government. The fact that the government affirmatively notifies aliens of the availability of counsel and regulates the immigration bar does not make it responsible for incompetence.

Compean also draws on Supreme Court cases holding that criminal defendants have no constitutional right to effective assistance of counsel in a discretionary state appeal or habeas proceeding because they have no constitutional right to any counsel in those proceedings. Compean reasons that if there's no right to effective assistance even for some criminal defendants, there is certainly no such right for aliens in civil immigration proceedings.

Under Compean, immigration judges and the board will no longer treat ineffective assistance as a constitutional claim. But Compean is not binding in the federal circuit courts, to which board decisions are appealed. It remains to be seen whether the courts will adopt the attorney general's new standards, or insist that the board continue to consider ineffective assistance claims under their previously decided cases.

New Discretionary Claim

Compean doesn't completely foreclose ineffective assistance claims. It recognizes that there is a public interest in ensuring the fairness and accuracy of removal proceedings. So, the board may choose to recognize ineffective assistance claims as a matter of discretion. However, because removal proceedings also have to be final and expeditious, Compean establishes that an alien must show several things to be eligible for this discretionary relief: Former counsel's failings must have been egregious. An ordinary mistake or failure to present the most compelling case possible does not suffice. There is a strong presumption against egregiousness.

The alien must have acted diligently to discover and cure the ineffective assistance. Aliens moving to reopen beyond the applicable time limit (usually 90 days) must show that they made timely inquiries about the progress of the case and moved to reopen "promptly" after discovering the deficiency.

It must be more likely than not that but for the deficient performance, the alien would have been entitled to the ultimate relief sought - usually, to stay in the U.S. Aliens seeking discretionary relief must clearly show that discretionary relief would have been granted. Compean acknowledges that this is a higher standard than the one adopted by the 9th Circuit.

Aliens also must attach certain supporting documents to the motion to reopen. Those documents include the alien's agreement with the lawyer at issue; a copy of a letter to the former lawyer detailing the deficient performance and lawyer's response; a completed and signed - but not necessarily filed - complaint to State Bar or disciplinary authorities; if the claim is that the lawyer failed to submit something, that "something"; and a signed statement, using specified language, by the new attorney attesting to the former counsel's deficiency.

'Compean' in Practice

It is possible that the new attorney general will revise some elements of Compean. Such revisions would likely be directed at whether aliens have a due process right to ineffective assistance and the standard for determining prejudice, rather than the new procedural rules. At least for now, though, Compean is contrary to 9th Circuit jurisprudence in several respects. Here are some suggestions for how to handle the discrepancies:

The 9th Circuit currently recognizes a constitutional ineffective assistance of counsel claim. Compean doesn't change that. So, even though the board will not treat ineffective assistance as a constitutional claim, practitioners preparing a motion to reopen should include a due process claim to preserve the issue for 9th Circuit review. Pursuant to Compean, the motion to reopen should also ask for discretionary relief.

Ninth Circuit law requires aliens to show that it is plausible they would have been entitled to relief but for the ineffective assistance. E.g., Jie Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004).

The 9th Circuit has held that the board abuses its discretion when it uses a higher standard. Maravilla Maravilla v. Ashcroft, 381 F.3d 855 (9th Cir. 2004). Compean instructs the board to use a higher ("more likely than not") standard - even in the 9th Circuit, unless the court reaffirms its constitutional rule. Practitioners therefore should attempt to comply with Compean's heightened prejudice standard while preserving an argument that the standard is wrong.

The 9th Circuit already requires aliens to describe their relationship with former counsel, notify former counsel of the ineffective assistance allegations and file a State Bar complaint. See Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006). It excuses compliance with these requirements in some contexts.

Compean requires additional documentation and leaves no room for excusing compliance with the requirements. Because immigration judges and the board will follow Compean and the 9th Circuit could choose to adhere to its requirements, practitioners should comply with them.