June 2009

In the waning days of his tenure as the Attorney General of the United States, Michael Mukasey altered the way that immigration removal proceedings had been managed in the wake of Matter of Lozada , 19 I & N Dec. 637 (BIA 1988). Lozada established procedural requirements for filing a motion to reopen deportation (now removal) proceedings based upon a claim of ineffective assistance of counsel. In relevant part, Lozada required an alien to show that he or she was prejudiced by the action or inaction of their immigration attorney. In furtherance of this showing, the alien had to establish that a grievance had been lodged against the immigration attorney with a relevant state lawyer regulator. Disciplinary officials throughout the country became very familiar with the Lozada doctrine and many saw an increase in the number of grievances filed by aliens against attorneys in their respective jurisdictions. This increased focus on the conduct of immigration lawyers posed problems for a number of state lawyer regulators. One significant problem derives from the essential nature of an immigration practice. Immigration law is national in scope, a practice that is not limited by state borders. There is much mobility among lawyers who practice immigration law; a lawyer with a valid state law license can open an immigration law office in any state even though the lawyer might not have a law license issued in the state where the office is located. As a practical matter, this can result in some practical problems for lawyer regulators. As an example, an attorney licensed to practice law in California opens an immigration law office in Chicago, even though that lawyer does not have an Illinois license. A client who lives in Chicago is concerned about the quality of the lawyer’s services. The client files a grievance with the Illinois lawyer regulator. Currently, the Illinois disciplinary authority has no jurisdiction over the California practitioner, notwithstanding the fact the lawyer’s law office is located in Chicago. Instead, the grievance is sent to the California State Bar for action. The California State Bar is forced to conduct a long-distance investigation of their licensed lawyer, even though all of the transactions at issue occurred in Illinois and all of the relevant witnesses live there.

On January 7, 2009, Mukasey issued a directive in  Matter of Compean,  et, al,  Interim Decision No. 3632, 24 I&N Dec. 710 (A.G.), that became binding on all immigration courts and the Board of Immigration Appeals, entities overseen by the Justice Department's Executive Office for Immigration Review. See NOBC Case of the Month (January 2009) at http://www.nobc.org/caseofthemonth.aspx. The opinion had its genesis in three different removal cases ( Matter of Compean , Matter of Bangaly and Matter of J-E-C ). Pursuant to the January directive, the Attorney General held that a liens in removal proceedings have no right to counsel, including Government-appointed counsel, under either the Fifth or Sixth Amendment of the United States Constitution. Aliens did have a statutory privilege to retain private counsel at no expense to the Government. As a result of the decision, i mmigrants would have to demonstrate to immigration officials that that their attorney's alleged ineffectiveness was “egregious” and that the lawyer’s failings likely affected the outcome of the removal case in order for the alien to get relief from any adverse removal order. The opinion further held that, “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.” An alien who sought to reopen a removal proceeding based on deficient performance of counsel had the burden of establishing:

     (i)    that the alien’s  lawyer’s failings were egregious;
     (ii)   that in cases where the alien moves to reopen beyond the applicable time limit, he or she exercised due
            diligence in discovering and seeking to cure the lawyer’s alleged deficient performance; and
     (iii)  that the alien 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. 

An alien who sought to reopen his removal proceedings based on deficient performance of counsel had to also submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. The alien had attach to his motion five documents or sets of documents including:

      (i)     a copy of an agreement, if any, with the lawyer whose performance he alleges was deficient;
      (ii)    a copy of a letter to the 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  (emphasis supplied);
      (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 was unavailable, the alien had to provide an explanation.

The Mukasey edict puzzled a good number of lawyer regulators, especially as to the requirement that successor counsel for the immigrant had to provide a completed and signed complaint addressed to, but not necessarily filed with, the appropriate state bar or disciplinary authority. Many regulators wondered whether the successor lawyer was duty-bound to threaten the prior lawyer with the filing of a grievance, conduct that would be prohibited in some jurisdictions.

Five months later, however, the  substantive and procedural framework for reviewing ineffective assistance of counsel claims changed again. New Attorney General Eric H. Holder Jr., reversed the directives of his predecessor in  Matter of Compean, Bangaly & J-E-C , 25 I&N Dec. 1 (A.G. 2009).

Mukasey had reversed the Lozada protocol by an exercise of what he believed was his administrative discretion. He acknowledged that his decision might conflict with the Lozada -based approach adopted in a number of federal courts of appeal. That acknowledgment was a major factor in Holder’s decision to reconsider the Compean directive. Holder did not believe that Mukasey’s analysis thoroughly considered all of the issues involved. Holder found it particularly troubling that a new, complex framework hurriedly replaced well-established practice that had been reaffirmed by the Board of Immigration Appeals in   Matter of Assad , 23 I&N Dec. 553 (BIA 2003). Holder declared that the preferable administrative process for reforming the Lozada framework would be one where all interested parties had a “full and fair” opportunity to participate and ensured that all relevant facts were collected and diligently evaluated. He ordered the Acting Director of the Executive Office for Immigration Review to initiate rulemaking procedures to facilitate determining what modifications should be proposed for public consideration. Once a proposed rule is drafted, the Department of Justice (“DOJ”) will solicit information and public comment through publication of the draft in the Federal Register. The DOJ may ultimately, if appropriate, proceed with the publication of a final rule.

Holder said Mukasey’s   new procedural framework   depended in part on his conclusion that there is no constitutional right to effective assistance of counsel in removal proceedings. Because that conclusion does not need to be reached either to decide the cases involved under pre- Compean standards or to initiate a rulemaking process, Holder vacated Compean in its entirety. To ensure that there is an established framework in place prior to the issuance of a final rule, Holder ordered that pre- Compean standards, in other words Lozada standards, are followed regardless of when such motions were filed.

Prior to the Compean matter , the Board never resolved whether it had the discretion to reopen removal proceedings based on ineffective assistance of counsel based on conduct that occurred after a final order of removal had been entered. Holder resolved that question in the interim by concluding the Board did have such discretion and left to the Board the task of determining the scope of such discretion. Holder concurred with Mukasey’s decision to affirm the Board’s holdings that denied reopening of the matters reviewed in Compean. Mukasey used the Lozada framework in reaching those conclusions.

-RICHARD S. THOMAS, COUNSEL, ILLINOIS ARDC &
-JAMES J. GROGAN, DACC, ILLINOIS ARDC