Mr. Lee's Article "Motions to Reopen Based on Ineffective Assistance of Counsel Viable Again"

By Alan Lee, Esq.

Aliens with final orders of exclusion, deportation, or removal may once again be able to overturn them on the basis of ineffective assistance of counsel. Attorney General Eric Holder vacated the midnight ruling of Matter of Compean, 24 I&N Dec. 710 (AG 2009), vac. 25 I&N Dec.1 (AG 2009), on June 3, 2009, and reestablished the standard of Matter of Lozado, 19 I&N Dec. 637 (BIA 1988), for the time being. Under Lozado, a claim of ineffective assistance of counsel could be made where 1.) the motion is supported by an affidavit of the alien setting forth in detail the agreement that was entered into with counsel with respect to the actions taken and what representations counsel did and did not make to the alien in this regard, 2.) counsel whose integrity or competence is being impugned is informed of the allegations leveled against him and given an opportunity to respond, and 3.) the motion reflects whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. The Compean case, decided by former Attorney General Michael Mukasey during his last days in office, overturned Lozado on the basis that aliens had no constitutional right to legal counsel. In vacating the Compean decision, Attorney General Holder directed the Board of Immigration Appeals and immigration judges to continue to apply previously established standards for reviewing motions to reopen pending the outcome of the rulemaking process. Mr. Holder stated that because it was not necessary to decide whether there was a constitutional right to effective assistance of counsel in removal proceedings to decide the cases before the Board under pre-Compean standards or to initiate a rulemaking process, his order would vacate Compean in its entirety. Mr. Holder also gave a boon to aliens in further stating that, although the Board itself had never resolved whether its discretion to reopen removal proceedings included power to consider claims of ineffective assistance of counsel based on the conduct of counsel that occurred after a final order of removal had been entered, the question would be resolved favorably on the side of aliens pending issuance of a final rule.

As to whether a final rule is inevitable, the Attorney General left open that question by saying that the Department of Justice may if appropriate proceed with the publication of a final rule after soliciting information and public comment for publication of a proposed rule in the Federal Register from all interested persons on a revised framework for reviewing claims of ineffective assistance of counsel in immigration proceedings.

The withdrawal of Compean does not mean of course that all cases involving ineffective assistance of counsel can now be won, but it does give a clear chance to those who have a case for reopening under pre-Compean law. Questions in all Lozado cases must still be addressed such as meeting the appropriate deadlines of 90 days of a final order of removal or 180 days where the alien did not appear for the hearing or else leaving it to the discretion of U.S.I.C.E. and the immigration judges or Board to contest the timeliness of the filing; determining when the countdown to 90 or 180 days begins where counsel's ineffective assistance was hidden; working on cases where the alien has not complied with all the Lozado requirements; dealing with situations where ineffective assistance of counsel is through a non-lawyer's incompetence or fraud; or attempting to excuse the alien's late filing under the doctrine of equitable tolling and if so, whether the alien exercised reasonable diligence during the period sought to be tolled, etc.

The Attorney General's action is a further repudiation of some of the immigration abuses of the Bush Administration and a highly encouraging sign of where Mr. Obama wants to lead the immigration debate.


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2009 Alan Lee, Esq.


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