Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
710
Matter of Enrique Salas COMPEAN, Respondent
File A078 566 977 – Houston, Texas
Matter of Sylla BANGALY, Respondent
File A078 555 848 – Houston, Texas
Matter of J-E-C-, et al., Respondents
Decided by Attorney General January 7, 2009
U.S. Department of Justice
Office of the Attorney General
(1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no
expense to the Government.
(2) Aliens in removal proceedings have no right to counsel, including Government-appointed
counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment
applies only to criminal proceedings and removal proceedings are civil in nature.
(3) Aliens in removal proceedings also have no right to counsel, including
Government-appointed counsel, under the Fifth Amendment. Although the Fifth
Amendment applies to removal proceedings, its guarantee of due process does not include
a general right to counsel, or a specific right to effective assistance of counsel, and is
violated only by state action, namely, action that can be legally attributed to the
Government. Lawyers privately retained by aliens in removal proceedings are not state
actors for due process purposes. Accordingly, there is no Fifth Amendment right to
effective assistance of counsel in removal proceedings. To the extent the Board’s
decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad,
23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are
overruled.
(4) 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.
(5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not
affirmatively undermine the fairness and accuracy of removal proceedings. At the same
time, there is a strong public interest in the expeditiousness and finality of removal
proceedings. On balance, these interests justify allowing the Board to reopen removal
proceedings in the extraordinary case where a lawyer’s deficient performance likely
changed the outcome of an alien’s initial removal proceedings. In addition, they call for
a set of standards and requirements that will allow the Board to resolve most claims
expeditiously and on the basis of an alien’s motion to reopen and accompanying
documents alone. Whether an alien has made a sufficient showing to warrant relief basedCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
711
on counsel’s allegedly deficient performance is, in each case, committed to the discretion
of the Board or the immigration judge.
(6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an
accredited representative, or a non-lawyer that the alien reasonably but erroneously
believed to be a lawyer who was retained to represent the alien in the proceedings.
(7) An alien who seeks to reopen his removal proceedings based on deficient performance
of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious;
(ii) that in cases where the alien moves to reopen beyond the applicable time limit, he
exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient
performance; and (iii) that he 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.
(8) An alien who seeks to reopen his removal proceedings based on deficient performance
of counsel must submit a detailed affidavit setting forth the facts that form the basis of the
deficient performance of counsel claim. He also must attach to his motion five documents
or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose
performance he alleges was deficient; (ii) a copy of a letter to his 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; (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 is unavailable, the alien must explain why. If any of these
documents is missing rather than nonexistent, the alien must summarize the document’s
contents in his affidavit. Matter of Lozada, superseded.
(9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s
deficient performance is not limited to conduct that occurred during the agency
proceedings. The Board may reopen on the basis of deficient performance that occurred
subsequent to the entry of a final order of removal if the standards established for a
deficient performance of counsel claim are satisfied.
FOR RESPONDENT COMPEAN: Cyril Chuckwurah, Esquire, Houston, Texas
FOR RESPONDENT BANGALY: Isuf Kola, Esquire, Glen Ellyn, Illinois
FOR RESPONDENT J-E-C-, et al.: Robert J. Jacobs, Esquire, Gainesville, Florida
AMICI CURIAE: Advocates for Human Rights; Massachusetts Law Reform Institute, and
other organizations; National Immigrant Justice Center; American Immigration Law
Foundation, and other organizations; Immigration Law Clinic at the University of Detroit
Mercy School of Law; Immigrant and Refugee Appellate Center; and others
FOR THE DEPARTMENT OF HOMELAND SECURITY: Gus P. Coldebella, Acting
General Counsel; David A. Landau, Chief Appellate CounselCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
712
BEFORE THE ATTORNEY GENERAL
(January 7, 2009)
On August 7, 2008, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007), I
directed the Board of Immigration Appeals (“Board”) to refer to me for review
its decisions in the above-captioned cases, and I invited the parties and any
interested amici to submit briefs addressing the questions I planned to consider
on certification.
For the reasons set forth in the accompanying opinion, I affirm the Board’s
orders denying reopening in the certified cases and overrule the Board’s
decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of
Assaad, 23 I&N Dec. 553 (BIA 2003), to the extent those decisions are
inconsistent with the legal conclusions and administrative framework set forth
in the opinion.
OPINION
The Supreme Court has recognized constitutional claims for ineffective
assistance of counsel only where a person has a constitutional right to a
Government-appointed lawyer. In contrast to a defendant in a criminal case,
an alien has no right—constitutional or statutory—to Government-appointed
counsel in an administrative removal proceeding. Compare section
240(b)(4)(A) of the Immigration and Nationality Act (“INA” or “Act”),
8 U.S.C. § 1229a(b)(4)(A) (2006) (providing that an alien has a “privilege of
being represented, at no expense to the Government, by counsel of the alien’s
choosing”), and section 292 of the Act, 8 U.S.C. § 1362 (2006), with U.S.
Const. amend. VI (“In all criminal prosecutions, the accused shall . . . have the
Assistance of Counsel for his defence.”), and Gideon v. Wainwright, 372 U.S.
335 (1963). The question before me is whether, notwithstanding the absence
of a constitutional right to a Government-appointed lawyer, there is
nevertheless a constitutional right to effective assistance of counsel in removal
proceedings. More specifically, the question is whether the Constitution
entitles an alien who has been harmed by his lawyer’s deficient performance
in removal proceedings to redo those proceedings.
In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) (“Lozada”), the Board
of Immigration Appeals (“Board”) responded to an alien’s constitutional claim
of ineffective assistance of counsel by assuming, consistent with the earlier
rulings of two Federal courts of appeals, that an alien “may” have a
constitutional right to effective assistance of counsel under the Due Process
Clause of the Fifth Amendment. Id. at 638. Having thus accepted the
potential existence of such a right, the Board’s decision established three
threshold requirements—commonly known as the “Lozada factors”—that anCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
713
alien must satisfy to reopen his removal proceedings on the basis of lawyer
error. The Board revisited these issues 15 years later in Matter of Assaad,
23 I&N Dec. 553 (BIA 2003) (“Assaad”), in response to a claim from the
Immigration and Naturalization Service (“INS”) that Supreme Court precedent
in criminal and habeas cases undermined the notion of a constitutional right to
effective assistance of counsel in removal proceedings. The Board
acknowledged “some ambiguity in the basis set forth in [Lozada] for [aliens]
to assert ineffective assistance claims,” but declined to overrule its prior
decision. Id. at 558. Among the reasons cited by the Board, one loomed large:
“[S]ince Matter of Lozada was decided 15 years ago, the circuit courts have
consistently continued to recognize that . . . [an alien] has a Fifth Amendment
due process right to a fair immigration hearing and may be denied that right if
counsel prevents the respondent from meaningfully presenting his or her case.”
Id. (citing cases).
Five years later, that condition no longer holds, as several courts of
appeals, relying on the same Supreme Court precedent that the INS had cited
in Assaad, have rejected the proposition that there is a constitutional right to
the effective assistance of counsel in removal proceedings. See, e.g., Rafiyev
v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d
788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir.
2005); see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (suggesting
the same in dictum); Stroe v. INS, 256 F.3d 498, 500-01 (7th Cir. 2001) (same
and noting that the “question whether there is ever a constitutional right to
[effective assistance of] counsel in immigration cases is ripe for
reconsideration”). In addition, the courts of appeals that continue to recognize
the constitutional right have diverged with respect to the standards and
requirements for a successful ineffective assistance claim. Some courts, for
example, have applied a strict standard of prejudice while others have not;
some have treated the Lozada factors as mandatory while others have not.
Because of the circuit splits on these important issues, and the resulting
patchwork of rules governing motions to reopen removal proceedings in
different parts of the country, I ordered the Board to refer these matters to me
so that I could review the Board’s position on both the constitutional question
and the question of how best to resolve an alien’s claim that his removal
proceeding was prejudiced by his lawyer’s errors. See Att’y Gen. Order Nos.
2990-2008, 2991-2008, & 2992-2008 (Aug. 7, 2008); see also 8 C.F.R.
§ 1003.1(h)(1)(i) (2008); cf. Matter of R-A-, 24 I&N Dec. 629, 631 (Att’y Gen.
2008) (stressing the importance of a “consistent, authoritative, nationwide
interpretation of ambiguous provisions of the immigration laws”). To aid my
review, I invited the parties and any interested amici curiae to submit briefs
addressing the constitutional question. I invited them to address also whether,
if there is no constitutional right to effective assistance of counsel, an alienCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
1 My orders of August 7, 2008, called for submission of all briefs by September 15, 2008,
and stated that “requests for extensions will be disfavored.” Following requests from a few
parties and amici, however, I extended the briefing deadline for all briefs by 3 weeks, until
October 6, 2008. See Att’y Gen. Order No. 2998-2008 (Sept. 8, 2008). Thus, in total, the
parties and amici had 1 day shy of 2 full months to prepare their submissions, which is more
time than that usually granted for briefing matters before the Board. See Board of
Immigration Appeals Practice Manual ch. 4.7(a) and (c), at 65-67 (rev. July 30, 2004). I
received more than a dozen amicus briefs from interested organizations and individuals.
714
nevertheless should be permitted, as a matter of administrative discretion, to
reopen removal proceedings based on his lawyer’s deficient performance.1
I conclude, as have a growing number of Federal courts, that the
Constitution does not confer a constitutional right to effective assistance of
counsel in removal proceedings. The reason is simple: Under Supreme Court
precedent, there is no constitutional right to effective assistance of counsel
under the Due Process Clause or any other provision where—as here and as
in most civil proceedings—there is no constitutional right to counsel, including
Government-appointed counsel, in the first place. Therefore, although the
Fifth Amendment’s Due Process Clause applies in removal proceedings, as it
does in any civil lawsuit or in any administrative proceeding, that Clause does
not entitle an alien to effective assistance of counsel, much less the specific
remedy of a second bite at the apple based on the mistakes of his own lawyer.
However, the foregoing conclusion does not foreclose a remedy for aliens
prejudiced by their lawyers’ errors, because the Department of Justice is not
limited to the very least that the Constitution demands. Although the
Constitution does not entitle an alien to relief for his lawyer’s mistakes, I
conclude that the Department may, in its discretion, allow an alien to reopen
removal proceedings based on the deficient performance of his lawyer.
Balancing the strong public interest in the fairness and accuracy of removal
proceedings with the strong public interest in the finality of completed
proceedings, I establish in this opinion an administrative framework for the
exercise of that discretion. In extraordinary cases, where a lawyer’s deficient
performance likely changed the outcome of an alien’s removal proceedings,
the Board may reopen those proceedings notwithstanding the absence of a
constitutional right to such relief. Applying this administrative framework to
the three cases before me, I affirm the Board’s orders.
I.
I begin with a brief summary of the certified matters. In Matter of
Compean, respondent, a native and citizen of Mexico, unlawfully entered the
United States in 1989. In 2004, he was placed in removal proceedings and
sought cancellation of removal. The Immigration Judge denied respondent’sCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
715
request on the ground that he had failed to establish the “exceptional and
extremely unusual hardship” required by section 240A(b)(1)(D) of the Act,
8 U.S.C. § 1229b(b)(1)(D) (2006), and ordered him removed from the United
States. After the Board affirmed on the merits, respondent filed a motion to
reopen on the grounds of ineffective assistance of counsel. Respondent’s
self-described “most important” claim was that his former lawyer had failed
to present evidence of a pending Form I-130 visa petition, although in point of
fact that form had been part of the record before the Immigration Judge. In
May 2008, the Board denied the motion on two grounds. First, the Board
found that respondent had not filed a complaint with disciplinary authorities
regarding his lawyer’s deficient representation or explained his failure to do
so, as required by Lozada. Second, noting that respondent had not produced
any evidence that his lawyer’s conduct precluded him from presenting before
the Immigration Judge, the Board concluded that respondent had failed to
establish that he had suffered prejudice from his lawyer’s actions.
In Matter of Bangaly, respondent, a native and citizen of Mali, entered the
United States in 1998 on a non-immigrant visa, which he unlawfully
overstayed. He was placed in removal proceedings in 2003. Respondent
subsequently obtained several continuances because he had filed for
adjustment of status based upon his 2002 marriage to a United States citizen.
In 2004, the Department of Homeland Security denied respondent’s request for
adjustment of status because his wife had failed three times to appear for an
interview. The Immigration Judge denied respondent’s request for a further
continuance so that he could seek reopening of his adjustment of status petition
and ordered him removed. Respondent’s lawyer filed a notice of appeal,
which stated that respondent would challenge the denial of the additional
continuance. Respondent’s lawyer never filed an appellate brief, however, and
in 2005 the Board summarily affirmed the Immigration Judge’s order.
Approximately 2 years later, respondent moved to reopen his removal
proceedings. Respondent alleged that his former counsel’s failure to file an
appellate brief and to notify him that his appeal had been summarily denied
constituted ineffective assistance of counsel but did not explain how he had
been prejudiced by these failures. In March 2008, the Board denied
respondent’s motion because he had failed to comply with one of Lozada’s
requirements: He had not given his former counsel a chance to respond to his
allegations of ineffective representation.
Finally, in Matter of J-E-C-, the lead respondent, a native and citizen of
Colombia, was admitted to the United States in 2000 on a 6-month visa. His
wife and children, also respondents, were admitted in 2001, on 6-month visas
as well. Lead respondent then sought asylum, withholding of removal, and
protection under the Convention Against Torture on his own behalf and
derivatively for his wife and children. In 2003, the Department of HomelandCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
2 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, Div. C, 110 Stat. 3009-546 (enacted Sept. 30, 1996), established a new type of
proceeding known as a “removal” proceeding to replace “deportation” proceedings.
716
Security found respondents ineligible for relief and began removal
proceedings. In those proceedings, lead respondent conceded removability,
but renewed his application for asylum and withholding of removal. The
Immigration Judge denied relief, concluding that, among other things, lead
respondent had failed to demonstrate persecution “on account of” a protected
ground, and ordered respondents removed. Respondents’ lawyer filed a notice
of appeal with the Board alleging four points of error, but the Board never
received a brief in support of the appeal. Notwithstanding the absence of a
brief, the Board addressed the four points of error on the merits, and affirmed
what it called the “thorough and well-reasoned decision” of the Immigration
Judge. Thereafter, respondents moved to reopen, contending that counsel’s
failure to file a brief constituted ineffective assistance and submitting a copy
of the brief they would have submitted. In April 2008, the Board denied
respondents’ motion. Noting its previous decision addressing the merits of the
claims, and reviewing those claims again, the Board concluded that
respondents had suffered no prejudice from the failure to file a brief because
a brief would not have changed the outcome of their proceedings.
II.
Several uncontroversial propositions inform whether there is a
constitutional right to effective assistance of counsel in removal proceedings.
A removal proceeding is a civil action, not a criminal proceeding. See, e.g.,
INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation
proceeding is a purely civil action to determine eligibility to remain in this
country, not to punish an unlawful entry.”); Harisiades v. Shaughnessy, 342
U.S. 580, 594 (1952) (“Deportation, however severe its consequences, has
been consistently classified as a civil rather than a criminal procedure.”).2
Therefore, the Sixth Amendment’s guarantee that, in all “criminal
prosecutions,” an “accused shall . . . have the Assistance of counsel for his
defence” does not apply. See, e.g., Abel v. United States, 362 U.S. 217, 237
(1960) (“[D]eportation proceedings are not subject to the constitutional
safeguards for criminal prosecutions.”). Accordingly, the Federal courts
uniformly have held that the Sixth Amendment right to counsel (which
includes the right to Government-appointed counsel) does not apply in
removal proceedings. See, e.g., Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th
Cir. 2003); United States v. Loaisiga, 104 F.3d 484, 485 (1st Cir. 1997);
Delgado-Corea v. INS, 804 F.2d 261, 262 (4th Cir. 1986); United States
v. Cerda-Pena, 799 F.2d 1374, 1376 n.2 (9th Cir. 1986). The correspondingCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
717
Sixth Amendment right to effective assistance of counsel, see Strickland
v. Washington, 466 U.S. 668, 685-86 (1984), does not apply either. See, e.g.,
Afanwi, 526 F.3d at 796 & n.31 (citing cases).
Unlike the Sixth Amendment, the Due Process Clause of the Fifth
Amendment, which provides that “[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law,” applies to civil and criminal
proceedings alike. Moreover, that Clause applies to “all ‘persons’ within the
United States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693
(2001). Therefore, it is well established that the Fifth Amendment entitles all
aliens who have entered the United States to due process of law in removal
proceedings. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993); see also
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)
(“[A]liens who have once passed through our gates, even illegally, may be
expelled only after proceedings conforming to traditional standards of fairness
encompassed in due process of law.”).
The Fifth Amendment’s due process guarantee, however, applies only
against the Government. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332
(1976) (stating that the Due Process Clause applies only to “governmental
decisions which deprive individuals of ‘liberty’ or ‘property’ interests within
the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment”) (emphasis added). Thus, the actions of a private party,
including a privately retained lawyer, can give rise to a due process claim only
if those actions can be attributed to the Government for constitutional
purposes. See, e.g., San Francisco Arts & Athletics, Inc. v. United States
Olympic Comm., 483 U.S. 522, 542-43 (1987) (stating that where a plaintiff
alleges a violation of the Fifth Amendment, “[t]he fundamental inquiry is
whether the [defendant] is a governmental actor to whom the prohibitions of
the Constitution apply”); cf. Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (stating
that the Due Process Clause of the Fourteenth Amendment “erects no shield
against merely private conduct, however discriminatory or wrongful”). The
question presented in these cases, therefore, is whether the conduct of a
privately retained lawyer can be attributed to the Government for Due Process
Clause purposes such that a litigant’s general right to due process with respect
to state action would include a specific right to effective representation by that
private lawyer.Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
3 The Supreme Court has recognized a due process right to Government-appointed counsel
(and thus a constitutional right to effective assistance of counsel) in certain civil proceedings
that pose the same ultimate threat to a defendant’s physical liberty as a criminal trial that
may result in incarceration. See Vitek v. Jones, 445 U.S. 480, 496-97 (1980) (plurality)
(holding that an individual has a constitutional right to appointed counsel in a civil
proceeding the outcome of which may result in physical confinement at a psychiatric
institution); In re Gault, 387 U.S. 1, 36-41 (1967) (holding that a juvenile has a
constitutional due process right to appointed counsel in a delinquency proceeding where he
faces commitment to a juvenile-detention facility). But these cases involved the right to
Government-appointed counsel, and the Supreme Court has largely limited these holdings
to their particular contexts. See, e.g., Stroe, 256 F.3d at 500 (noting that Murray
v. Giarratano, 492 U.S. 1 (1989), and Pennsylvania v. Finley, 481 U.S. 551 (1987),
“seem . . . to have cut back on earlier cases according a Fifth Amendment right to counsel
when physical liberty is at stake in a noncriminal proceeding”) (citing Lassiter v. Department
of Social Services, 452 U.S. 18, 31-32 (1981), and In re Gault, 387 U.S. at 36). And, in any
event, the “pre-eminent generalization that emerges” from these cases is that the right to
Government-appointed counsel “has been recognized to exist only where the litigant may
lose his physical liberty if he loses the litigation.” Lassiter, 452 U.S. at 25 (emphasis added).
Although an alien may be detained during the course of a removal proceeding, he does not
“lose his physical liberty” based on the outcome of the proceeding. That is, the point of the
proceeding is not to determine or provide the basis for incarceration or an equivalent
deprivation of physical liberty, but rather to determine whether the alien is entitled to live
freely in the United States or must be released elsewhere.
718
In the usual civil case, the answer to this question is a resounding no.3
It
is well established that, as a general matter, there is no constitutional right to
counsel, and thus no constitutional right to effective assistance of counsel, in
civil cases. See, e.g., MacCuish v. United States, 844 F.2d 733, 735 (10th Cir.
1988) (citing cases). Instead, the rule is that counsel’s errors are imputed to
the client who chose his counsel, and that the client’s sole remedy is a suit for
malpractice against counsel and not a litigation do-over. See Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 397 (1993);
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92 (1990); Link v.
Wabash R.R., 370 U.S. 626, 634 n.10 (1962); Magala, 434 F.3d at 525. That
is true even when the case is complex or the stakes are especially high.
Indeed, “[t]he non-right to effective assistance of counsel in civil cases is the
rule even when the proceeding though nominally civil involves liberty or even
life, as in a capital habeas corpus case, where the Supreme Court has held that
there is no right to effective assistance of counsel.” Stroe, 256 F.3d at 500
(citing Murray v. Giarratano, 492 U.S. 1 (1989), and Pennsylvania v. Finley,
481 U.S. 551 (1987)).
Despite the foregoing uncontroversial principles, several courts of appeals
have suggested or held that the Due Process Clause creates a right to effectiveCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
4
It is important to note that many of these courts have limited the right to effective
assistance of counsel to proceedings in which an alien seeks non-discretionary relief, thus
precluding constitutional ineffective assistance of counsel claims in proceedings seeking
purely discretionary relief such as waiver or cancellation of removal, asylum, adjustment
of status, or voluntary departure. See, e.g., Garcia v. Attorney General, 329 F.3d 1217,
1223-24 (11th Cir. 2003); Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001);
Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999); see also Gutierrez-Morales
v. Homan, 461 F.3d 605, 609-10 (5th Cir. 2006); Guerra-Soto v. Ashcroft, 397 F.3d 637,
640-41 (8th Cir. 2005); United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004). Butsee,
e.g., Fernandez v. Gonzales, 439 F.3d 592, 602 & n.8 (9th Cir. 2006); Rabiu v. INS, 41 F.3d
879, 882-83 (2d Cir. 1994). These limitations flow from Supreme Court precedent holding
that the constitutional guarantee of procedural due process applies to government
proceedings only where a constitutionally protected interest in life, liberty, or property is at
stake in those proceedings, see, e.g., Wilkinson v. Austin, 545 U.S. 209, 221 (2005), and that
such interests are not implicated where proceedings involve only the pursuit of purely
discretionary administrative relief, see, e.g., Connecticut Bd. of Pardons v. Dumschat, 452
U.S. 458, 464-67 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7-10 (1979).
719
assistance of counsel in removal proceedings. See, e.g., Nehad v. Mukasey,
535 F.3d 962, 967 (9th Cir. 2008); Aris v. Mukasey, 517 F.3d 595, 600-01 (2d
Cir. 2008); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Fadiga
v. Attorney General, 488 F.3d 142, 155 (3d Cir. 2007); Sene v. Gonzales, 453
F.3d 383, 386 (6th Cir. 2006); Dakane v. United States Attorney General, 399
F.3d 1269, 1274 (11th Cir. 2005); Tang, 354 F.3d at 1196; see also Nelson
v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006) (“[T]he only context in
which courts have recognized a constitutional right to effective assistance of
counsel in civil litigation is in immigration cases.”).4
As noted, the Board has
accepted these decisions as well. See Assaad, 23 I&N Dec. at 560; Lozada,
19 I&N Dec. at 638.
In doing so, however, the Board did not consider several critical points.
For one thing, the cases the Board has accepted as supporting a potential Fifth
Amendment right to effective assistance of counsel in removal proceedings
rest on a weak foundation. As several courts now recognize, the cases
acknowledging a constitutional right to effective assistance of counsel in
removal proceedings trace back to a pair of 1975 decisions by the United
States Court of Appeals for the Fifth Circuit, Barthold v. INS, 517 F.2d 689
(5th Cir. 1975), and Paul v. INS, 521 F.2d 194 (5th Cir. 1975), neither of
which actually held that such a right exists. See Afanwi, 526 F.3d at 797. In
fact, the Fifth Circuit explicitly stated in those cases that the “existence, let
alone the nature and scope, of such a right has not been established,” and
merely suggested in dictum that “any right an alien may have in this regard is
grounded in the fifth amendment guarantee of due process rather than the sixthCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
5
In Assaad, the Board emphasized that the Fifth Circuit had “joined the other circuits that
have found a basis in the Fifth Amendment for ineffective assistance of counsel claims.”
23 I&N Dec. at 558 (citing Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001)).
But the Fifth Circuit itself has stated that it “has repeatedly assumed without deciding that
an alien’s claim of ineffective assistance may implicate due process concerns under the Fifth
Amendment.” Mai, 473 F.3d at 165 (emphasis added).
720
amendment right to counsel.” Barthold, 517 F.2d at 690 (emphasis added);
see also Paul, 521 F.2d at 197 (following Barthold).5
More important, the constitutional analysis in the cases that recognize a
Fifth Amendment right to effective assistance of counsel in removal
proceedings is, in the words of the Seventh Circuit “distinctly perfunctory,”
Stroe, 256 F.3d at 500; see also Assaad, 23 I&N Dec. at 558 (“We . . .
acknowledge some ambiguity in the basis set forth in [Lozada] for [aliens] to
assert ineffective assistance claims.”), and fails to establish that lawyers
privately retained to represent aliens in removal proceedings are state actors
for purposes of the Due Process Clause. This is a fatal flaw because, as noted,
it is indisputable that the Fifth Amendment applies only against the
Government. See, e.g., San Francisco Arts & Athletics, Inc., 483 U.S. at 542-
43; Mathews, 424 U.S. at 332. And as the Eighth Circuit recently observed,
it is “difficult to see how an individual, such as an alien’s attorney, who is not
a state actor, can deprive anyone of due process rights.” Rafiyev, 536 F.3d at
860-61.
For private action to trigger scrutiny under the Due Process Clause, there
must be a “sufficiently close nexus” between the Federal Government and the
conduct of the private party “so that the action of the latter may be fairly
treated as that of” the Government itself. Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 351 (1974); accord Blum v. Yaretsky, 457 U.S. 991, 1004-05
(1982) (stating that “constitutional standards” may be invoked to challenge
private action “only when it can be said that the [Government] is responsible
for the specific conduct of which the plaintiff complains”); Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (emphasizing that the Due
Process Clause applies to a private actor only if he may “fairly be said to be a
state actor”). That may be the case where the private actor “has exercised
powers that are traditionally the exclusive prerogative of the [Government],”
or where the Government “has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice must in law
be deemed to be that of the [Government].” Blum, 457 U.S. at 1004-05
(internal quotation marks omitted). But “[t]he mere fact that a [private party]
is subject to state regulation does not by itself convert its action into that of the
[Government]” for purposes of the Due Process Clause. Id. at 1004 (internal
quotation marks omitted). And “[m]ere approval of or acquiescence in the
initiatives of a private party is not sufficient” either. Id. at 1004-05.Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
721
Applying these standards here, I agree with the courts that have concluded
that the Government is not responsible for the conduct of a privately retained
lawyer in removal proceedings. See Rafiyev, 536 F.3d at 861; Afanwi, 526
F.3d at 798-99; Magala, 434 F.3d at 525. A private lawyer plainly does not
exercise “powers that are traditionally the exclusive prerogative” of the
Government because the lawyer is an adversary of the Government. Cf.
Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S.
288, 304 (2001) (“The state-action doctrine does not convert opponents into
virtual agents.”); Polk County v. Dodson, 454 U.S. 312, 317-24 (1981)
(holding that adversaries of the state are not state actors for purposes of
42 U.S.C. § 1983). Nor, in the ordinary case, can it be said that a private
lawyer’s deficient performance in representing an alien in removal proceedings
is the product either of Government “coerci[on]” or “encouragement.” Blum,
457 U.S. at 1004-05; see, e.g., Afanwi, 526 F.3d at 799 (“Afanwi’s counsel
was privately retained pursuant to 8 U.S.C. § 1362, and his alleged
ineffectiveness . . . was a purely private act. The federal government was
under no obligation to provide Afanwi with legal representation, and there was
no connection between the federal government and counsel’s failure.”)
(footnote omitted).
It is true that, as respondents and their amici assert, the Federal
Government has taken affirmative steps to notify aliens of the availability of
counsel, see, e.g., 8 C.F.R. § 1240.10(a)(1)-(3) (2008), and to regulate the
private immigration bar, see, e.g., id. §§ 1003.101(a)(1)-(4), 1003.102(k),
1292.1(a)(1)-(6), 1292.2(a), (c), (d), 1292.3(a). But as noted, the “mere fact
that a [private party] is subject to state regulation does not by itself convert its
action into that of the [Government]” for purposes of the Due Process Clause.
Blum, 457 U.S. at 1004 (internal quotation marks omitted). Moreover, for the
constitutional standards to apply, the Government must be responsible for “the
specific conduct of which the plaintiff complains.” Id. (emphasis added). It
cannot accurately be said that the Government’s steps to encourage competent
representation and to improve the quality of counsel as a general matter are
“responsible” for a specific lawyer’s incompetent performance. Cf. Lawrence
v. Florida, 547 U.S. 327, 337 (2007) (“[A] State’s effort to assist prisoners in
postconviction proceedings does not make the State accountable for a
prisoner’s delay.”). The relevant regulatory provisions do not condone poor
representation, much less constitute “significant encouragement” of, Blum, 457
U.S. at 1004, or “willful participa[tion] in,” Lugar, 457 U.S. at 941 (internal
quotation marks omitted), incompetent performance. These basic and
well-established principles, which the Board did not consider in either Lozada
or Assaad, have moved several courts to hold that private lawyers inCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
722
immigration proceedings are not state actors for due process purposes. See
Rafiyev, 536 F.3d at 861; Afanwi, 526 F.3d at 798-99; Magala, 434 F.3d at
525.
In arguing that a private lawyer’s representation of an alien in a removal
proceeding may nonetheless constitute state action, respondents and their
amici rely heavily on the Supreme Court’s decision in Cuyler v. Sullivan, 446
U.S. 335 (1980). See, e.g., Brief for American Immigration Law Foundation
as Amicus Curiae at 11-12, 15, 17; Brief for Joseph Afanwi as Amicus Curiae
at 3, 6, 10, 12. But that reliance is misplaced. In Cuyler, the Court held that
a criminal defendant may challenge the effectiveness of his trial lawyer even
if that lawyer was privately retained. See 446 U.S. at 342-45. A reading of the
Court’s decision, however, makes plain that its holding was merely an
application of the underlying Sixth Amendment right to counsel in criminal
cases (and the equal justice principles that make that right applicable to the
actions of both Government-appointed and privately retained lawyers). As the
Court explained:
Our decisions make clear that inadequate assistance does not satisfy the Sixth
Amendment right to counsel . . . . [T]he Sixth Amendment does more than require the
States to appoint counsel for indigent defendants. The [Sixth Amendment] right to
counsel prevents the States from conducting trials at which persons who face
incarceration must defend themselves without adequate legal assistance.
A proper respect for the Sixth Amendment disarms [the] contention that
defendants who retain their own lawyers are entitled to less protection than defendants
for whom the State appoints counsel. . . . The vital guarantee of the Sixth Amendment
would stand for little if the often uninformed decision to retain a particular lawyer
could reduce or forfeit the defendant’s entitlement to constitutional protection.
Id. at 344 (emphasis added). As the repeated references in this passage to the
Sixth Amendment make clear, the Court’s ruling was grounded in the Sixth
Amendment and its explicit guarantee of a right to counsel, including
Government-appointed counsel, which are inapplicable here. That is, the
Court recognized a constitutional right to effective assistance of counsel by
privately retained lawyers in criminal proceedings because: (1) the
Constitution itself, through the Sixth Amendment, guarantees a right to
counsel in such proceedings (whether the defendant is “indigent” or able to
hire lawyers); (2) to be meaningful, this right must refer to “adequate” (or
effective) assistance of counsel; and (3) in light of principles of equal justice,
the right must apply to all criminal defendants, whether they hire private
lawyers with their own funds or have a Government-appointed lawyer. Thus,
where, as here, there is no constitutional right to counsel that includes the right
to Government-appointed counsel, the holding in Cuyler does not apply. See,
e.g., Stroe, 256 F.3d at 501 (“In criminal cases . . . the Sixth Amendment isCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
723
interpreted to impute even a retained lawyer’s goof-ups to the state, Cuyler
v. Sullivan, 446 U.S. 335, 342-45 (1980)—but then the Sixth Amendment
creates a right to counsel, whereas all that the due process clause requires, so
far as procedure is concerned, is notice and an opportunity for a hearing.”).
Were there any doubt on this score, it is resolved by the Supreme Court’s
decisions in Wainright v. Torna, 455 U.S. 586 (1982) (per curiam), and
Coleman v. Thompson, 501 U.S. 722 (1991). In Wainwright, the Court
considered whether the respondent, a criminal defendant, could challenge his
lawyer’s failure to file timely a discretionary appeal to the State supreme court.
Noting that “a criminal defendant does not have a constitutional right to
counsel to pursue discretionary state appeals,” 455 U.S. at 587 (citing Ross
v. Moffitt, 417 U.S. 600 (1974)), the Court quickly disposed of the
respondent’s claim. “Since respondent had no constitutional right to counsel,”
the Court explained, “he could not be deprived of the effective assistance of
counsel by his retained counsel’s failure to file the application timely.” Id. at
587-88. In reaching this conclusion, the Court explicitly addressed the due
process and state action issues relevant here, explaining that the respondent
“was not denied due process of law by the fact that counsel deprived him of
his right to petition” the State supreme court for review because “[s]uch
deprivation . . . was caused by his counsel, and not by the State.” Id. at 588
n.4.
The Court applied the same analysis in Coleman. In that case, the
petitioner, a criminal defendant, had been convicted and sentenced to death.
On State habeas review, he raised various Federal constitutional claims, but the
State supreme court refused to address them because his lawyer had filed an
untimely notice of appeal. Normally, such “procedural default” would bar
review of the claims on Federal habeas review, but the petitioner argued that
his lawyer’s error should excuse the default. As in Wainwright, the Court
rejected this argument swiftly: “There is no constitutional right to an attorney
in state post-conviction proceedings. Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel in such proceedings. See
Wainwright v. Torna, 455 U.S. 586 (1982) (where there is no constitutional
right to counsel there can be no deprivation of effective assistance).”
Coleman, 501 U.S. at 752 (some citations omitted). The Court further
explained that because the petitioner’s lawyer was “the petitioner’s agent when
acting, or failing to act, in furtherance of the litigation, . . . the petitioner must
‘bear the risk of attorney error.’” Id. at 753 (quoting Murray v. Carrier, 477
U.S. 478, 488 (1986); and citing Link, 370 U.S. at 634, and Irwin, 498 U.S. at
92).
The Court acknowledged that a different rule applied where, as in Cuyler,
a lawyer’s conduct had deprived his client of the Sixth Amendment’s right to
counsel. The Court explained, however, that “[t]his is not because . . . theCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
724
error is so bad that ‘the lawyer ceases to be an agent of the petitioner.’”
Coleman, 501 U.S. at 754 (quoting petitioner’s brief). Rather, “if the
procedural default is the result of [constitutional] ineffective assistance of
counsel, the Sixth Amendment itself requires that responsibility for the default
be imputed to the State.” Id. (internal quotation marks omitted) (emphasis
added). “In other words,” wrote the Court, “it is not the gravity of the
attorney’s error that matters, but that it constitutes a violation of petitioner’s
right to counsel, so that the error must be seen as an external factor, i.e.,
‘imputed to the State.’” Id. Where a criminal defendant has been deprived of
his Sixth Amendment right to effective assistance of counsel, the Court
continued, “the State, which is responsible for the denial as a constitutional
matter, must bear the cost. . . . A different allocation of costs is appropriate in
those circumstances where the State has no responsibility to ensure that the
petitioner was represented by competent counsel.” Id.; cf. Lawrence, 549 U.S.
at 337 (holding that a lawyer’s filing errors do not entitle a party to equitable
tolling in a “context where [the party] ha[s] no constitutional right to
counsel”).
Respondents and their amici attempt to distinguish Wainwright and
Coleman on the grounds that those cases implicated federalism concerns that
are not present here and involved discretionary state appeals rather than first
appeals as of right. See, e.g., Brief for American Immigration Law Foundation
as Amicus Curiae at 16-18; Brief for Joseph Afanwi as Amicus Curiae at
11-12. But to the extent relevant here, nothing in the Court’s decisions turned
on these considerations. (Indeed, Wainwright did not even discuss federalism.)
See Assaad, 23 I&N Dec. at 565-66 (Scialabba, Chairman, and Filppu, Board
Member, concurring). Respondents and their amici also contend that
Wainwright and Coleman should not guide the constitutional inquiry here
because they concerned criminal, rather than immigration, matters. See, e.g.,
Brief for Respondent J-E-C- at 9-11; Brief for American Immigration Law
Foundation as Amicus Curiae at 19-20; Brief for Joseph Afanwi as Amicus
Curiae at 11-12; see also Assaad, 23 I&N Dec. at 560 (majority opinion)
(stating, in adhering to Lozada, that Wainwright and Coleman “arose in the
context of criminal, rather than immigration, proceedings” and thus did not
control over circuit precedent issued in the immigration context). But
Coleman involved State habeas review, which—like a removal proceeding—is
civil in nature. Moreover, if anything, that Wainwright and Coleman related
to criminal cases actually cuts against the arguments presented by respondents
and their amici because criminal defendants enjoy an express constitutional
right to assistance of counsel, including Government-appointed counsel, while
aliens in removal proceedings do not.
In the final analysis, respondents’ and their amici’s arguments boil down
to an assertion that, notwithstanding all of the foregoing Supreme CourtCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
725
precedent and settled constitutional law, an alien’s general due process right
to a full and fair hearing on the merits of his immigration claims must include
a specific right to effective assistance of counsel because without such a
specific right removal proceedings would be fundamentally unfair. In
particular, respondents and their amici contend that because the stakes in
removal proceedings are so high, the immigration laws are so complex, and
aliens are so often ill equipped—due to cultural, educational, financial, or
language barriers—successfully to handle them alone, due process requires
the guiding hand of competent counsel. See, e.g., Brief for the Immigration
Law Clinic at the University of Detroit Mercy School of Law as Amicus
Curiae at 2-4; Brief for Respondent Bangaly at 9-10 (arguing for a
fundamentally fair proceeding); Brief for Respondent J-E-C- at 12 (same); see
also, e.g., Hernandez v. Mukasey, 524 F.3d 1014, 1017-18 (9th Cir. 2008);
Hernandez-Gil v. Gonzales, 476 F.3d 803, 806-07 (9th Cir. 2007). This
argument is insufficient to override the relevant constitutional holdings of
Wainwright and Coleman, which had nothing to do with the complexity of the
issues involved or the wealth and sophistication of the litigants. Nor can the
arguments convert otherwise private actors into state actors, which, as
discussed, is the prerequisite for a Due Process Clause claim.
Moreover, respondents’ and their amici’s argument regarding the special
nature of removal proceedings ignores key implications of the constitutional
right they assert. If respondents and their amici are correct that a Fifth
Amendment right to effective assistance of counsel flows from a litigant’s
relative disadvantage in certain civil proceedings, the Constitution would
arguably require not just effective assistance by privately retained lawyers
in removal proceedings, but also assistance of counsel—including
Government-appointed counsel—in removal proceedings. Yet no court has
ever held that such a right exists in removal proceedings. Nor has any court
ever suggested that where an alien represents himself in his removal
proceedings (as often happens), he has a constitutional right to seek or obtain
reopening of the proceedings on the ground that his own performance was
incompetent. This fact is revealing, because as the Supreme Court has
explained in the Sixth Amendment context, there are serious equal protection
concerns with construing the Constitution to confer greater rights on an alien
who chose to avail himself of the privilege to retain counsel than on an alien
who did not do so or who could not do so because he was indigent. See
Cuyler, 446 U.S. at 344.
In addition, if correct, respondents’ and their amici’s Fifth Amendment
argument would apply with equal, if not greater, force to many other forms of
civil proceedings. Yet courts have repeatedly and expressly held that there is
no constitutional right to effective assistance of counsel in other civil contexts
where the stakes are as high (or higher) than in removal proceedings and whereCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
726
litigants suffer from the same alleged disadvantages as aliens. As Judge
Easterbrook explained in a recent Seventh Circuit opinion, “The Constitution
entitles aliens to due process of law, but this does not imply a right to good
lawyering. Every litigant in every suit and every administrative proceeding is
entitled to due process, but it has long been understood that lawyers’ mistakes
are imputed to their clients.” Magala, 434 F.3d at 525 (citing cases); see also
Stroe, 256 F.3d at 500.
In sum, and as a number of courts have now recognized, there is no valid
basis for finding a constitutional right to counsel in removal proceedings, and
thus no valid basis for recognizing a constitutional right to effective assistance
of privately retained lawyers in such proceedings. The Sixth Amendment right
to effective assistance of counsel in criminal cases does not apply because
removal proceedings are civil. And the Fifth Amendment does not confer an
equivalent right because the Due Process Clause applies only against the
Government, aliens have no constitutional right to Government-appointed
lawyers in removal proceedings, and there is no other ground for treating
private lawyers as state actors. Accordingly, the Government is not
“responsible” for the denial of effective representation in removal proceedings
“as a constitutional matter.” Coleman, 501 U.S. at 754; see also, e.g., Rafiyev,
536 F.3d at 860-61 (concluding that because “[c]onstitutional rights are rights
against the government” and it is “difficult to see how an individual, such as
an alien’s attorney, who is not a state actor, can deprive anyone of due process
rights,” there “is no constitutional right under the Fifth Amendment to
effective assistance of counsel in a removal proceeding”).
The fact that aliens in removal proceedings have a statutory privilege to
retain counsel of their choosing at no expense to the Government, see sections
240(b)(4) and 292 of the Act, 8 U.S.C. §§ 1229a(b)(4) & 1362, does not
change the constitutional analysis, because a statutory privilege is not the same
as a right to assistance of counsel, including Government-appointed counsel,
under the Constitution. See Finley, 481 U.S. at 556 (“[T]he fact that the
defendant has been afforded assistance of counsel [under state law] does not
end the inquiry for Federal constitutional purposes. Rather, it is the source of
that right to a lawyer’s assistance, combined with the nature of the
proceedings, that controls the constitutional question. In this case,
respondent’s access to a lawyer is the result of the State’s decision, not the
command of the United States Constitution.”). Under Finley, Wainwright and
Coleman, it is the presence or absence of a constitutional (as opposed to
statutory or other) right to counsel, including Government-appointed counsel,
that controls whether there is a constitutional right to effective assistance of
counsel. See Rafiyev, 536 F.3d at 861 (“Removal proceedings are civil; there
is no constitutional right to an attorney, so an alien cannot claim
constitutionally ineffective assistance of counsel.”) (citing Wainwright,Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
727
Coleman and other cases). Because the Constitution does not confer a right to
counsel (including Government-appointed counsel) in removal proceedings,
I conclude, as have a growing number of Federal courts of appeals, that there
is no constitutional right to effective assistance of counsel in such proceedings.
To the extent they are inconsistent with this conclusion, Lozada and Assaad
(and any other Board precedent decisions on point) are overruled.
III.
Having concluded that there is no constitutional right to effective
assistance of counsel in removal proceedings, I consider whether a
non-constitutional source of law—either the immigration statutes or
departmental regulations—entitle an alien to reopen his removal proceedings
based on his lawyer’s deficient performance. They do not. The Act and its
implementing regulations merely permit an alien to hire “such counsel” as “he
shall choose,” section 292 of the Act; accord section 240(b)(4)(A) of the Act;
8 C.F.R. § 1003.16(b) (2008); they give an alien “no right to complain,” much
less reopen his proceedings, “if the lawyer he hires is ineffective.” Stroe, 256
F.3d at 500; see also Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008)
(“No statute entitles the alien to effective assistance of counsel.”); cf. Father
& Sons Lumber and Bldg. Supplies, Inc. v. NLRB, 931 F.2d 1093, 1097 (6th
Cir. 1991) (holding that the Administrative Procedure Act, 5 U.S.C. § 555(b)
(1988), which provides that a “person compelled to appear in person before an
agency . . . is entitled to be accompanied, represented, and advised by
counsel,” does not “confer a statutory right to effective assistance of counsel”).
Accordingly, neither the Constitution nor any statutory or regulatory provision
entitles an alien to a do-over if his initial removal proceeding is prejudiced by
the mistakes of a privately retained lawyer.
That said, the Department of Justice is “not limited to the very least that the
Constitution”—or the Act—“demands.” Magala, 434 F.3d at 526. Although
the law does not require the Department to provide an alien with the right to
reopen his removal proceedings based on lawyer error, the law allows the
Department to do so “as a matter of sound discretion.” Id. The source for this
authority is the Department’s broad authority to reopen removal proceedings.
See section 240(c)(7) of the Act (permitting a motion to reopen within 90 days
of the date on which a final administrative order of removal is entered); section
240(b)(5)(C) of the Act (granting an alien 180 days to seek reopening in order
to rescind a removal order entered in absentia; and providing no time limit
where the alien did not receive notice of the immigration hearing or was in
custody); 8 C.F.R. § 1003.2 (2008). The Act and its implementing regulations
place a few limits on the Board’s discretion in determining whether reopening
is warranted, see, e.g., section 240(c)(7)(B) of the Act (providing that a motionCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
6 Although this opinion discusses the Board’s power to reopen, immigration judges also have
the power to reopen removal proceedings based on a lawyer’s deficient performance, see
8 C.F.R. § 1003.23 (2008), and shall be guided by the same standards and procedures set
forth herein when adjudicating such a motion. Likewise, the framework in this opinion
applies to claims of deficient performance raised before the Board on direct review.
728
to reopen must state “the new facts that will be proven at a hearing to be held
if the motion is granted, and shall be supported by affidavits or other
evidentiary material”); 8 C.F.R. § 1003.2(c) (2008) (“A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing . . . .”), but the Board generally
enjoys “broad discretion” in ruling on motions to reopen, and may deny
reopening even where an alien has made a prima facie showing of eligibility
for relief. INS v. Doherty, 502 U.S. 314, 323 (1992); accord INS v. Abudu,
485 U.S. 94, 105-06 (1988); INS v. Rios-Pineda, 471 U.S. 444, 449 (1985);
Matter of Coelho, 20 I&N Dec. 464, 471-72 (1992); cf. Matter of J-J-, 21 I&N
Dec. 976, 984 (BIA 1997) (stating that the authority to reopen proceedings sua
sponte is limited to “exceptional” circumstances and “is not meant to be used
as a general cure for filing defects or to otherwise circumvent the regulations,
where enforcing them might result in hardship”).6
Reopening removal proceedings on the basis of a lawyer’s deficient
performance is a permissible exercise of this broad discretion. It is also a
proper exercise of that discretion in appropriate circumstances—namely, if
certain prerequisites, explained below, are met—because the stakes in removal
proceedings are sometimes high, the immigration laws can be complex, and
many aliens would be better equipped to navigate them with counsel. See,
e.g., Aris, 517 F.3d at 600; Hernandez-Gil, 476 F.3d at 806-07. Moreover, and
regrettably, “[t]he deficiencies of the immigration bar are well known.” Stroe,
256 F.3d at 504; see also, e.g., Aris, 517 F.3d at 596, 600-01 (“With disturbing
frequency, this Court encounters evidence of ineffective representation by
attorneys retained by immigrants seeking legal status in this country.”). There
is a strong public interest in ensuring that these deficiencies do not
affirmatively undermine the fairness and accuracy of removal proceedings. Cf.
Final Rule: Professional Conduct for Practitioners—Rules and Procedures,
65 Fed. Reg. 39,513, 39,514-15 (June 27, 2000) (recognizing that an effective
disciplinary system protects the public, preserves the integrity of the
immigration courts, and helps maintain high professional standards); Final
Rule: Professional Conduct for Practitioners—Rules and Procedures, and
Representation and Appearances, 73 Fed. Reg. 76,914, 76,915 (Dec. 18, 2008)
(defining “additional categories of behavior that constitute misconduct” by
attorneys and accredited representatives in order to “preserve the fairness andCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
7 The interest in ensuring that a lawyer’s deficient performance does not undermine the
fairness and accuracy of removal proceedings does not warrant, however, allowing a motion
to reopen based on the conduct of non-lawyers (except where an alien is represented by an
accredited representative pursuant to 8 C.F.R. § 1292.1(a)(4) or in the extraordinary case
where an alien reasonably but erroneously believed that someone was a lawyer). The reason
is that lawyers and accredited representatives are governed by rules of professional conduct
and have skills, including but not limited to knowledge of immigration laws and procedures,
that are directly related to furthering the interest that aliens and the Government have in fair
and accurate immigration proceedings. See, e.g., Hernandez, 524 F.3d at 1018-19. The
same cannot be said of non-lawyers, so-called “notarios” and other unaccredited immigration
consultants. See, e.g., Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n.4 (9th Cir.
2007) (“[T]he immigration system in this country is plagued with ‘notarios’ who prey on
uneducated immigrants.”); see also Executive Office for Immigration Review Press Release,
“Notarios,” Visa Consultants, and Immigration Consultants Are Not Attorneys (Nov. 20,
2008), available at <http://www.usdoj.gov/eoir/press/08/
NotariosNoticeProtectionsCAFINAL112008.pdf>. Accordingly, the deficient performance
claim established in this opinion extends only to the conduct of a lawyer, an accredited
representative, or a non-lawyer the alien reasonably but erroneously believed to be a lawyer
and who was retained to represent the alien in the proceedings; it does not extend any further
or to the conduct of an alien representing himself. Cf. Hernandez, 524 F.3d at 1018-19
(holding that an alien may not pursue an ineffective-assistance-of-counsel claim with respect
to the conduct of a non-lawyer).
729
integrity of immigration proceedings, and increase the level of protection
afforded to aliens in those proceedings”). That interest justifies allowing the
Board to mitigate the consequences of a lawyer’s deficient performance by
allowing an alien to relitigate his removal in the extraordinary case where his
lawyer’s deficient performance likely changed the outcome of his initial
removal proceedings.7
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. See, e.g., Liadov v. Mukasey, 518 F.3d
1003, 1009-10 (8th Cir. 2008) (“Congress in recent years has taken repeated
action to expedite removal proceedings and curb perceived abuses.”). As the
Supreme Court has observed, granting motions to reopen “too freely” would
undermine this interest by “permit[ting] endless delay of deportation by aliens
creative and fertile enough to continuously produce new and material facts
sufficient to establish a prima facie case.” Abudu, 485 U.S. at 108 (internal
quotation marks omitted); see also Doherty, 502 U.S. at 323 (stating that
motions to reopen are “especially” disfavored “in a deportation proceeding,
where, as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States”); Betouche
v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004) (“Since a delay in deportationCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
8 In the interest of national uniformity, the Board and immigration judges should apply the
framework set forth below in toto, even in circuits that have previously held that there is a
constitutional right to effective assistance of counsel. That will allow those circuits to
reconsider the question (en banc if necessary) more efficiently and easily, without the weight
of the Board’s 1988 Lozada precedent, which predated the majority of the relevant judicial
decisions. If, notwithstanding my decision today, a court of appeals subsequently reaffirms
(continued…)
730
may itself constitute a substantial boon to an alien already subject to a final
deportation order, there exists a significant prospect that entirely meritless
and/or collusive ineffective assistance claims may be filed for purely dilatory
purposes.”). This concern is especially strong when an alien seeks reopening
on the basis of a lawyer’s alleged deficient performance, because even a
meritless motion can succeed in tying up the system and postponing an alien’s
removal for months or even years based on the difficulties inherent in
assessing and adjudicating a lawyer’s performance after the fact. Federal
courts have observed that they are increasingly burdened by claims of lawyer
error and have condemned “the numerous groundless and dilatory claims” of
this sort that are “routinely submitted” to immigration judges and the Board.
Betouche, 357 F.3d at 150.
The balancing of these competing considerations in addressing motions to
reopen under the Act is committed to the discretion of the Attorney General.
See Abudu, 485 U.S. at 108, 110. I exercise that discretion in this opinion by
identifying the general criteria to be used by the Board and immigration judges
in addressing motions to reopen based on claims of deficient performance by
counsel. At the same time, the Board and immigration judges retain
considerable discretion in addressing such motions. Whether an alien has
made a sufficient showing to warrant relief based on counsel’s allegedly
deficient performance is, in each case, committed to the discretion of the
Board or the immigration judge. And the Board and immigration judges retain
discretion to deny relief in appropriate circumstances even if the prerequisites
described below are satisfied, especially where the ultimate relief sought is
discretionary.
IV.
With these competing interests in mind, I turn to the general framework
that the Board and immigration judges should apply henceforth when aliens
seek to reopen removal proceedings based on a lawyer’s deficient
performance. To avoid confusion with what has heretofore been treated as a
constitutional claim of ineffective assistance of counsel, I will refer to the
claim recognized in this opinion as a “deficient performance of counsel”
claim.8
Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
(…continued)
(or decides in the first instance) that there is a constitutional right to effective assistance of
counsel in removal proceedings, and that court’s decision has become final and
unreviewable, the Board and immigration judges will need to determine what elements of
the framework may be implemented in that circuit consistent with the court’s decision.
731
In establishing a framework for consideration of deficient performance
claims, I do not write on a blank slate. As noted, 20 years ago, in Lozada,
19 I&N Dec. 637, the Board held (albeit based on erroneous constitutional
underpinnings) that an alien may qualify for reopening of his removal
proceedings based on lawyer error. To qualify for relief, the Board explained,
an alien must establish that his lawyer’s failings had been “egregious,” and that
he had been prejudiced by his lawyer’s performance. Id. at 638-39. In
addition, the Board established three requirements, the so-called Lozada
factors, for reopening removal proceedings on grounds of lawyer error. First,
the alien must submit an affidavit “attesting to the relevant facts,” including
“a statement that sets forth in detail the agreement that was entered into with
former counsel with respect to the actions to be taken [in the litigation] and
what counsel did or did not represent to the [alien] in this regard.” Id. at 639.
Second, “former counsel must be informed of the allegations and allowed the
opportunity to respond,” and that response, if any, must accompany the
motion. Id. And third, “the motion should reflect whether a complaint has
been filed with appropriate disciplinary authorities regarding such
representation, and if not, why not.” Id.
The Lozada standards and requirements have largely stood the test of time,
but 20 years of experience has also revealed ways in which they can and
should be improved. The administrative framework established today
supersedes that set forth in Lozada, but draws on its approach. Significantly,
it is designed, as the framework in Lozada was, to enable the Board to resolve
most deficient performance claims on the basis of the written record presented
by the parties in connection with the motion without having to remand to an
immigration judge for fact-finding. See Patel v. Gonzales, 496 F.3d 829,
831-32 (7th Cir. 2007) (noting that the Lozada factors were designed to
“reduce the potential for abuse by providing information from which the
[Board] can assess whether an ineffective assistance claim has enough
substance to warrant the time and resources necessary to resolve the claim on
its merits”). Evidentiary hearings before an immigration judge cannot always
be avoided, but “such hearings are an added burden on both the parties and the
Immigration Court, and they rarely assist in resolving the merits of the
substantive immigration law issues presented by a particular case.” Matter of
Rivera, 21 I&N Dec. 599, 604 (BIA 1996). Consequently, the frameworkCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
732
established today is intended, as Lozada was, to permit the Board to resolve
the great majority of claims expeditiously on the basis of an alien’s motion to
reopen and accompanying documents alone. See id. (noting that the Board
“prefer[s] to make final determinations of ineffective assistance of counsel
claims on the documentary submissions alone, where possible”); see also
Betouche, 357 F.3d at 150 (“The immigration courts, which reasonably cannot
be expected to conduct a full-fledged evidentiary hearing for all such claims,
must be able to impose fair and efficacious techniques for screening out,
ab initio, the numerous groundless and dilatory claims routinely submitted in
these cases.”).
A.
To prevail on a deficient performance of counsel claim, an alien bears the
burden of establishing three elements.
1.
First, the alien must show that his lawyer’s failings were “egregious,” a
requirement the Board recognized in Lozada. See 19 I&N Dec. at 639. In
light of the strong public interest in finality and the rule that “litigants are
generally bound by the conduct of their attorneys,” id., it is not enough merely
to demonstrate that one’s lawyer made an ordinary mistake or could have
presented a more compelling case. Moreover, given the danger of second
guessing a lawyer’s performance with “the distorting effects of hindsight,” it
is appropriate in making this assessment to apply a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Requiring that the error be
“egregious,” and viewing the matter from counsel’s perspective at the time,
will help ensure that reopening is reserved for those extraordinary cases that
truly warrant relief, and that relief is not granted simply because an alien
shows after the fact that he received less than flawless representation.
2.
Second, in cases where the alien moves to reopen beyond the applicable
time limit—typically 90 days from the date the removal order was
entered—the Board may exercise its discretion to allow tolling of the 90-day
period, but only if the alien affirmatively shows that he exercised due diligence
in discovering and seeking to cure his lawyer’s alleged deficient performance.
Cf., e.g., Barry v. Mukasey, 524 F.3d 721, 724-25 (6th Cir. 2008) (holding that
the reopening deadline may be equitably tolled in cases involving a lawyer’sCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
733
deficient performance, provided that the alien shows due diligence); Zhao
v. INS, 452 F.3d 154, 157-58 (2d Cir. 2006) (same). “Due diligence requires
an alien to prove that the delay in filing the motion to reopen was due to an
exceptional circumstance beyond his control.” Tapia-Martinez v. Gonzales,
482 F.3d 417, 423 (6th Cir. 2007) (quotation marks omitted). In deficient
performance cases, this will typically require that the alien prove he made
timely inquiries about his immigration status and the progress of his case. It
will also typically require that the alien promptly file a motion to reopen within
a reasonable period after discovering his lawyer’s deficient performance.
There is no bright line for determining when a particular delay is too long.
Instead, the Board should evaluate due diligence on a case-by-case basis,
taking into account the circumstances of the case and the reasons offered for
any delay. The Board should perform this evaluation by determining
objectively when a reasonable person should have discovered the possibility
that he had been victimized by the lawyer’s deficient performance, and when
a reasonable person would have taken steps to cure it following discovery. See
Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000) (stating that the test is
whether the lawyer’s error was, “or should have been, discovered by a
reasonable person in the situation”); Patel v. Gonzales, 442 F.3d 1011, 1016
(7th Cir. 2006) (asking “whether a reasonable person in the plaintiff’s position
would have been aware of the possibility that he had suffered an injury”)
(internal quotation marks omitted). The determination of whether the facts and
circumstances warrant tolling of the filing period is—like the decision on a
motion to reopen based on counsel’s allegedly deficient performance
itself—committed in all instances to the discretion of the Board.
3.
Third, as the Board and courts of appeals uniformly have held, an alien
must establish prejudice arising from the lawyer’s errors. See Lozada, 19 I&N
Dec. at 638; cf. Strickland, 466 U.S. at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”).
The proper standard of prejudice to apply, however, is a crucial question
on which even the courts of appeals that have recognized a constitutionally
based claim of ineffective assistance have not spoken consistently. Some
courts apply a strict standard. See, e.g., Sako v. Gonzales, 434 F.3d 857, 864
(6th Cir. 2006) (holding that an alien “must establish that, but for the
ineffective assistance of counsel, he would have been entitled to continue
residing in the United States”). Other courts apply a standard similar to the
one the Supreme Court established in Strickland for Sixth Amendment
ineffective-assistance-of-counsel claims, namely “a reasonable probabilityCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
734
that, but for counsel’s professional errors, the result of the proceeding would
have been different.” See, e.g., Fadiga, 488 F.3d at 159. And one court—the
Ninth Circuit—deems the prejudice requirement satisfied as long as the alien
can show “plausible grounds for relief” on the underlying claim. Mohammed
v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005).
I conclude that to establish prejudice arising from a lawyer’s deficient
performance sufficient to permit reopening, an alien must show 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. In doing so, I borrow from the
standard commonly applied by the Federal courts, in both civil and criminal
proceedings, to motions for a new trial based on newly discovered evidence.
See, e.g., Environmental Barrier Co., LLC v. Slurry Sys., Inc., 540 F.3d 598,
608 (7th Cir. 2008); United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir.
2008). The Supreme Court itself has described such motions as “the
appropriate analogy” to motions to reopen removal proceedings. Abudu, 485
U.S. at 110; accord Doherty, 502 U.S. at 323. And as the Court explained,
“[t]he reasons why motions to reopen are disfavored in deportation
proceedings are comparable to those that apply to . . . motions for new trials
on the basis of newly discovered evidence. There is a strong public interest in
bringing litigation to a close as promptly as is consistent with the interest in
giving the adversaries a fair opportunity to develop and present their respective
cases.” Abudu, 485 U.S. at 107 (footnote omitted).
In my judgment, the “more likely than not” standard is more appropriate
than Strickland’s “reasonable probability” standard. See Kyles v. Whitley, 514
U.S. 419, 434 (1995) (recognizing that a “more likely than not” standard is
more demanding than a “reasonable probability” standard). The Strickland
standard, after all, was intended to vindicate a criminal defendant’s
constitutional right to effective assistance of counsel. Here, as discussed, there
is no constitutional right to effective assistance of counsel, so the alien’s
interests relative to the public interest in finality are correspondingly weaker.
It follows that the “more likely than not” standard is also more appropriate
than the Ninth Circuit’s “plausible grounds for relief” standard. Indeed, even
Strickland rejected a comparable standard, explaining that “[v]irtually every
act or omission of counsel would meet that test, and not every error that
conceivably could have influenced the outcome undermines the reliability of
the result of the proceeding.” 466 U.S. at 693. In short, the “more likely than
not” standard best reflects and protects the strong public interest in ensuring
the finality of removal proceedings while still providing a safety valve for
those cases in which an alien was demonstrably harmed by his lawyer’s
egregious performance.
As noted, this standard of prejudice requires the alien to establish the
probability that, but for his lawyer’s error, he would have been entitled to theCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
9
It bears mentioning that many of the Federal courts that have recognized constitutional
claims to ineffective assistance of counsel in removal proceedings have not even permitted
such claims where the relief sought is discretionary. See supra n. 4.
735
ultimate relief he was seeking. In most cases, this will require a showing that,
but for the lawyer’s error, the alien likely would have been entitled to continue
residing in the United States. Hence, an alien cannot prevail on a claim that,
for example, his lawyer was wrong in failing to request a continuance simply
by showing that he likely would have been granted a continuance. Instead, he
must show that, but for the lawyer’s failing, he likely would have succeeded
on the merits of his underlying claim to remain in the United States. And in
cases where discretionary relief is at issue, an alien must present evidence that
not only establishes he was eligible for relief, but also that he believes would
have led to a favorable exercise of discretion.
This is a common-sense requirement: If the alien would have been denied
discretionary relief had the merits been adjudicated, there can have been no
prejudice arising from an error that led to the agency’s failure to reach the
merits. Moreover, because an alien who seeks only discretionary relief is
removable, and because the request to reopen is itself discretionary, the Board
may properly insist upon a clear showing that discretionary relief would have
been granted if the merits had been adjudicated. This also will enable the
Board to address some claims of lawyer error more efficiently, because it “may
leap ahead, as it were, over the . . . threshold concerns . . . and simply
determine that even if they were met, the movant would not be entitled to the
discretionary grant of relief.” Abudu, 485 U.S. at 105.9
B.
To enable the Board to determine if these standards have been met, an alien
who seeks reopening of removal proceedings based on his lawyer’s deficient
performance also must submit certain documents in support of his motion. In
particular, he must submit a detailed affidavit setting forth the facts that form
the basis of the deficient performance of counsel claim. The affidavit must
explain with specificity what his lawyer did or did not do, and why he, the
alien, was harmed as a result. As the First Circuit has explained, “the
requirement of a sworn affidavit, presaging and memorializing the testimony
which the alien petitioner would present were he to be accorded a hearing,
produces the primary evidentiary basis upon which the [agency] evaluates the
bona fides of the petitioner’s claim in determining whether a hearing is even
warranted.” Betouche, 357 F.3d at 150. Moreover, “by exposing an alien to
the potential pains of perjury, the affidavit requirement foster[s] an atmosphere
of solemnity commensurate with the gravity of the . . . claim, and serves as aCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
736
screening device whereby deportable aliens are discouraged from filing
dilatory ineffective assistance claims.” Id. (internal quotation marks omitted).
In addition to the alien’s affidavit, the alien must attach five documents or
sets of documents to his motion. If any of these documents is unavailable, the
alien must explain why. If any of these documents is missing rather than
nonexistent, the alien must summarize the document’s contents in his affidavit.
1.
First, the alien must attach a copy of his agreement, if any, with the lawyer
whose performance he alleges was deficient. Where there was no written
agreement, the alien must specify in his affidavit what the lawyer had agreed
to do, including whether it included the particular step in the proceedings in
which the deficient performance is alleged to have occurred. This requirement
will enable the Board to determine whether the alleged error was actually
within the scope of the lawyer’s representation. After all, the mere fact that a
lawyer failed to do something—for example, file a petition for review—does
not, by itself, establish that the lawyer’s conduct was deficient, because the
alien may not have retained the lawyer for that purpose. See Lozada, 19 I&N
Dec. at 639 (noting that the alien “has not alleged, let alone established, that
former counsel ever agreed to prepare a brief on appeal or was engaged to
undertake the task”); see also, e.g., Beltre-Veloz v. Mukasey, 533 F.3d 7,
10 (1st Cir. 2008) (holding that the petitioner’s motion to reopen had a “fatal
flaw” in that it “makes no mention of the nature, scope, or substance of the
petitioner’s arrangement with [his lawyer], nor does it indicate what
communications the petitioner had with the attorney over the years”).
2.
Second, the alien must attach both a copy of a letter to his former lawyer
setting forth the lawyer’s deficient performance and a copy of the lawyer’s
response, if any. (If the alien never received a response from his former
lawyer, his affidavit must note the date on which he mailed his letter and state
whether he made any other efforts to notify the lawyer.) The letter from the
alien must suffice to put the lawyer on notice that the alien intends to file a
deficient performance claim and to inform the lawyer of the facts that the alien
alleges in support of the claim. This requirement gives the former
lawyer—whose professional competence is being questioned—an opportunity
to present his side of the story, and helps to ensure that the Board has the facts
necessary to render an informed judgment. As the Board recognized in
Lozada, this requirement also has the effect of “discouraging baseless
accusations” because “the potential for abuse is apparent where no mechanismCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
10 Where a deficient performance claim is based on the conduct of an accredited
representative, see 8 C.F.R. § 1292.1(a)(4) (permitting aliens appearing before the Board to
be represented by an accredited representative); cf. Matter of Zmijewska, 24 I&N Dec. 87,
94 (BIA 2007) (holding that the Lozada framework applies to accredited representatives),
the alien must instead attach a complaint addressed to the Executive Office for Immigration
Review disciplinary counsel, because such accredited representatives are subject to
disciplinary action under the Executive Office for Immigration Review’s professional
conduct regulations.
737
exists for allowing former counsel, whose integrity or competence is being
impugned, to present his version of events if he so chooses.” 19 I&N Dec. at
639.
3.
Third, the alien must attach a completed and signed complaint addressed
to the appropriate State bar or disciplinary authorities.10 This requirement, like
the preceding one, discourages baseless accusations and collusion, because it
is one thing to file a motion that, even if denied, has the effect of delaying
removal and another thing altogether to back that motion with the weight of
a disciplinary complaint. See Assaad, 23 I&N Dec. at 556 (noting that the “bar
complaint requirement acts as a protection against collusion between counsel
and client to achieve delay in proceedings”). As the Board has explained, the
requirement “increases our confidence in the validity of the particular claim,
reduces the likelihood that an evidentiary hearing will be needed, and serves
our long-term interests in monitoring the representation of aliens by the
immigration bar.” Id.; cf. 65 Fed. Reg. at 39,514-15; 73 Fed. Reg. at 76,915.
It should be noted that, under this requirement, the alien need not actually
file the complaint with the appropriate State bar or disciplinary authorities, as
Lozada had required. By making the actual filing of a bar complaint a
prerequisite for obtaining (or even seeking) relief, it appears that Lozada may
inadvertently have contributed to the filing of many unfounded or even
frivolous complaints. See, e.g., Comment filed by the Committee on
Immigration & Nationality Law, Association of the Bar of the City of New
York (Sept. 29, 2008), in response to the Proposed Rule for Professional
Conduct for Practitioners—Rules and Procedures, and Representation and
Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule,
an ineffective assistance of counsel charge is often required in order to reopen
a case or reverse or remand an unfavorable decision. The practice of filing
such claims is rampant, and places well-intentioned and competent
attorneys at risk of discipline.”). Such unfounded complaints impose costs on
well-intentioned and competent attorneys, and make it harder for State bars toCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
11 Of course, nothing prevents an alien, should he choose to do so, from filing his complaint
with the State bar and with the Board. Prior filing of a complaint with the State bar simply
is not a requirement for the motion to reopen.
738
identify meritorious complaints in order to impose sanctions on lawyers whose
performance is truly deficient. The new approach is intended to avoid these
problems by requiring only that the alien submit to the Board a completed and
signed but unfiled complaint, and leaving it to the Board whether to refer the
complaint to the State bar or to the Executive Office for Immigration Review
disciplinary counsel for further action.11
4.
Fourth, if the alien’s claim is that his former lawyer failed to submit
something to the immigration judge or to the Board, he must attach the
allegedly omitted item to his motion. For example, if the alien’s claim is that
his former lawyer failed to submit a brief to the Board, he must submit, in
substance and detail if not in form, a copy of the brief that he alleges should
have been filed. If the alien’s claim is that his former lawyer failed to
introduce certain evidence or testimony, he must submit that evidence (directly
in the case of physical or documentary evidence and through a witness’s
affidavit in the case of testimony) to the Board. Moreover, the alien must
explain in his affidavit whether he told his former lawyer about the evidence
or testimony in question, and if not, why not.
Requiring aliens to submit such material to the Board will reduce delays
and promote finality by ensuring that the Board can resolve most deficient
performance claims without remanding for evidentiary hearings. In addition,
requiring proof that an alien told his lawyer about evidence or testimony—or
had a good reason for failing to do so—is common sense. After all, if an alien
never shared the existence of certain evidence or testimony with his lawyer,
it is difficult to fault the lawyer for failing to submit that evidence or testimony
to the immigration judge.
5.
Fifth and finally, where an alien is represented by counsel in seeking
reopening, the motion for reopening shall contain the following signed
statement of the new attorney: “Having reviewed the record, I express a belief,
based on a reasoned and studied professional judgment, that the performance
of my client’s former counsel fell below minimal standards of professionalCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
12 A lawyer may not bypass this requirement by preparing a motion to reopen for the alien
and then having the alien file the motion pro se. Cf. 8 C.F.R. § 1001.1(i) (2008) (defining
the term “practice” to mean “the act or acts of any person appearing in any case, either in
person or through the preparation or filing of any brief or other document, paper,
application, or petition on behalf of another person or client”) (emphasis added); id.
§ 1001.1(k) (defining the term “preparation, constituting practice,” to mean “the study of the
facts of a case and the applicable laws, coupled with the giving of advice and auxiliary
activities, including the incidental preparation of papers”) (emphasis added). I also note that
this requirement to acknowledge the deficient performance of counsel in the prior
proceedings is applicable even where the same attorney continues to represent the alien in
seeking to reopen the proceedings based on his own prior deficient performance.
739
competence.”12 This requirement—which is analogous to court of appeals
rules requiring lawyers to attest to the existence of circuit splits or to questions
of exceptional importance in petitions for rehearing en banc, see, e.g., Third
Circuit Rule 35.1 (2008); Federal Circuit Rule 35(b) (2008)—will further
discourage meritless claims by serving as a reminder that challenges to the
performance of another lawyer should not be made lightly.
C.
The legal standards set forth in Part IV.A and the evidentiary requirements
set forth in Part IV.B are mandatory. That is, to be eligible for a favorable
exercise of discretion based on a deficient performance claim, an alien must
comply with all requirements that apply. Excusing an alien from compliance
with a particular requirement, or deeming “substantial compliance” adequate
(as several courts of appeals have done with respect to the Lozada factors, see,
e.g., Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir. 2004)), would hinder
the development of a complete record, making it more difficult for the
Government to respond and more difficult for the Board to adjudicate the case.
It also would undermine the Board’s (and the bar’s) efforts to monitor the
quality of representation before the immigration courts. Finally, excusing
compliance in some cases would create uncertainty as to when a requirement
will be enforced and when it will be waived. Of course, even if an alien
complies with all applicable requirements, the Board is not compelled to
reopen proceedings, as reopening ultimately is discretionary. See, e.g.,
Doherty, 502 U.S. at 323.
D.
Finally, it bears noting that the Board’s discretion to reopen on the basis of
a lawyer’s deficient performance is not limited to conduct that occurred duringCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
13 In cases involving claims of this sort, it is not uncommon for the alien to allege that his
lawyer never notified him of the Board’s decision in his case. To ensure that aliens receive
notice of decisions in their cases and to forestall unfounded allegations that they did not, I
have directed the Executive Office for Immigration Review to begin sending courtesy copies
of final Board decisions to the aliens themselves in addition to sending them to the aliens’
lawyers. The Executive Office for Immigration Review intends to do so beginning March
1, 2009. See Executive Office for Immigration Review Press Release, Board To Begin
Providing Copy of Decision to Aliens Who Are Represented by Counsel (Dec. 19, 2008),
available at <http://www.usdoj.gov/eoir/press/08/BIAProvides CourtesyCopy121908.pdf>.
After that date, aliens will be presumed to have received personal notice of the Board’s
decision (in addition to notice through counsel) if it was sent to the most recent address the
alien provided to the Executive Office for Immigration Review, as required by 8 C.F.R.
§ 1003.15(d) (2008).
740
the agency proceedings. The Board may reopen on the basis of deficient
performance that occurred subsequent to the entry of a final order of removal.13
In reaching this conclusion, I recognize that, in reviewing claims under the
Lozada framework, the Board has not spoken consistently on the question of
when deficient performance must occur to permit reopening. See Afanwi, 526
F.3d at 795-96 (noting that the Board “has issued contradictory opinions on the
subject” and citing cases). I recognize also that the courts of appeals have
taken conflicting views. Compare Dearinger ex rel. Volkova v. Reno, 232
F.3d 1042, 1044 n.4 (9th Cir. 2000) (“A claim of ineffective assistance of
counsel occurring after the [Board] has ruled may be raised with the [Board]
by filing a motion to reopen.”), and Gjondrekaj v. Mukasey, 269 Fed. Appx.
106, 108 (2d Cir. 2008) (remanding where the alien’s lawyer missed the
petition for review filing deadline, and holding that “to the extent the [Board]
here concluded that it could not grant reopening or reissuance absent some
error by the agency or ineffective assistance before the agency, it failed to
apply the correct law”), with Afanwi, 526 F.3d at 795-96 (holding that the
Board “does not have jurisdiction over an ineffective assistance claim arising
out of an alien’s counsel’s failure to file a timely petition for review with the
court of appeals”).
In my judgment, the better view, and the one I adopt today, is that the
Board has jurisdiction to consider deficient performance claims even where
they are predicated on lawyer conduct that occurred after a final order of
removal has been entered. The Board has broad discretion to reopen removal
proceedings, and nothing in the statute or the regulations limits the grounds for
reopening to events that occurred before the agency or prior to the entry of the
final administrative order of removal. See Firmansjah v. Ashcroft, 347 F.3d
625, 627 (7th Cir. 2003) (explaining, in a case where the alien’s lawyer had
missed the petition-for-review filing deadline, that “[t]he Board of Immigration
Appeals . . . has authority to reopen and revise its decisions on account of newCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
741
developments” and “nothing prevents the Board from entering a new removal
order, which is subject to a fresh petition for review”). In holding otherwise,
the Fourth Circuit in Afanwi relied on 8 C.F.R. § 1003.1(d)(3)(ii) to conclude
that the Board’s jurisdiction is limited to “questions of law, discretion, and
judgment and all other issues in appeals from decisions of immigration
judges.” 526 F.3d at 795-96. But that regulation addresses only the scope and
standard of review by the Board. It does not purport to restrict the Board’s
jurisdiction or to limit the Board’s broad authority to reopen removal
proceedings.
Deficient performance claims based on conduct that occurred after entry
of a final order of removal shall be evaluated under the standards set forth in
this opinion for all deficient performance claims. Thus, an alien must comply
with the filing requirements set forth in Part IV.B, and must establish, among
other things, that, but for the deficient performance, it is more likely than not
that he would have been entitled to the ultimate relief he was seeking, as
provided in Part IV.A. It is beyond the scope of this opinion to identify all the
situations in which reopening after entry of a final order of removal may be
warranted. There are, however, some situations in which it clearly would be
unwarranted, such as when the deficient performance claim involved the
quality of a lawyer’s briefs or arguments before a court of appeals – that is,
when the claim involved conduct in proceedings conducted well after the
administrative order of removal became final, in a separate tribunal in a
separate branch of government.
V.
Before evaluating the Board’s orders in the instant cases, it is necessary to
address one final matter: how, if at all, the framework announced in this
opinion should be applied to motions to reopen (including the three at issue
here) that were filed prior to this opinion. The general rule is that an agency
or court should apply the law in effect at the time that it renders its decision.
See Bradley v. Richmond Sch. Bd., 416 U.S. 696, 716 (1974); see also
Meghani v. INS, 236 F.3d 843, 846 (7th Cir. 2001). In light of that rule, the
Board and immigration judges should apply the substantive standards set forth
in Part IV.A above to motions to reopen based on a lawyer’s deficient
performance, regardless of when such motions were filed. It would be unfair,
however, to apply the new filing requirements set forth in Part IV.B to such
motions, since aliens may have filed them in good faith reliance on Lozada.
See Bradley, 416 U.S. at 720 (stating that changes in the law should not be
applied to pending cases where those changes would result in the imposition
of “new and unanticipated obligations” without adequate notice).
Accordingly, I hold that the Board and immigration judges should apply theCite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
14 Given the potential delay between signing this opinion and its publication, it may be
unreasonable to expect aliens to comply with the new filing requirements immediately.
Accordingly, the Board and immigration judges may allow amendment of motions filed in
the next few weeks to comply with the new filing requirements.
742
new filing requirements only with respect to motions filed after today; with
respect to motions filed prior to this opinion, they should continue to apply the
Lozada factors.14
With respect to the instant cases, then, the substantive standards set forth
in Part IV.A above apply, but the new filing requirements set forth in Part IV.B
do not. Applying those rules, I affirm the Board’s decisions denying
respondents’ motions to reopen.
In Matter of Compean, respondent’s motion was without merit for three
reasons. First, applying the substantive standards set forth in this opinion,
respondent has failed to establish either that his former lawyer committed an
“egregious” error or that he was prejudiced by any deficiencies in the lawyer’s
conduct. As noted, respondent’s self-described “most important” claim was
that his former lawyer had failed to submit his Form I-130 visa petition to the
Immigration Judge, but that form was in fact part of the record. Thus, he has
shown neither that his lawyer’s actions were egregious nor that, but for his
lawyer’s performance, it is more likely than not that he would have established
the “exceptional and extremely unusual hardship” required for cancellation of
removal. Section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D). The
Board therefore properly denied respondent’s motion to reopen on the ground
that he had failed to establish prejudice. Finally, as the Board noted,
respondent failed to comply with Lozada’s requirement of filing a disciplinary
complaint. Under Lozada, that alone warranted denial of his motion.
In Matter of Bangaly, respondent’s motion was properly denied on either
of two grounds. First, under Lozada (as under the new requirements set forth
in this opinion), respondent was required to give his former lawyer notice of
his alleged deficiencies and a chance to respond. As discussed above, such
notice is important because it discourages baseless claims and because it
makes it more likely that the Board can address the motion without the need
to remand for a hearing. Yet, as the Board found, respondent failed to show
that he complied with this requirement. Second, respondent has failed to show
prejudice under the standard announced in this opinion. His motion to reopen
was premised on his former lawyer’s failure to file a brief with the Board
appealing the Immigration Judge’s denial of an additional continuance. But
neither here nor before the Board has respondent made any effort to show that,
had his lawyer filed a brief, he likely would have obtained the continuance, let
alone that he likely would have been permitted to remain in the United States.Cite as 24 I&N Dec. 710 (A.G. 2009) Interim Decision #3632
743
In Matter of J-E-C-, unlike the other two cases, respondents appear to have
complied with the Lozada factors. Nevertheless, respondents’ motion was
properly denied for failure to establish prejudice. Among other things, the
Board addressed the merits of each of the four points of error identified in
respondents’ notice of appeal before it affirmed the Immigration Judge’s
“thorough and well-reasoned decision.” (BIA Apr. 8, 2008). The Board also
considered the brief submitted by respondents’ new lawyer and found it
unpersuasive, thus “affirming . . . that the respondent[] did not suffer
prejudice” from the failure of his former lawyer to file an appellate brief. Id.
Under the standard of prejudice adopted in this opinion, the Board’s decision
was correct.
CONCLUSION
In sum, for the reasons stated above, I overrule Lozada and Assaad to the
extent they are inconsistent with the constitutional conclusions in this opinion,
and I affirm the Board’s decisions denying reopening in each of the matters
before me.