January 2009

Topic:
The constitution and immigration laws do not entitle an alien in removal proceedings to relief for a lawyer’s mistakes, but the Department of Justice may as “a matter of administrative grace” reopen removal proceedings where an alien shows he was prejudiced by the actions of private counsel.

Matter of Lozada , 19 I & N Dec. 637 (BIA 1988) has been overruled by this month’s case of the month, Matter of Compean, et. al . Interim Decision No. 3632, 24 I & N Dec. 710 (A G. January 7, 2009), to the extent that Lozada is inconsistent with Compean ’s conclusions.

The Lozada decision had a significant impact on state lawyer regulators. The case held that an alien “may” have a constitutional right to effective assistance of counsel under the Due Process Clause of the Fifth Amendment. Having recognized the possible existence of such a right, Lozada established three threshold requirements, commonly called “the Lozada factors,” that an alien must satisfy in order to reopen his removal proceedings on the basis of lawyer error. The factors were:

1. That a motion for a new removal hearing be supported by an affidavit of the allegedly aggrieved alien setting forth in detail the representation agreement that was entered into with counsel;
2. That the counsel whose integrity is being impugned be informed of the allegations being leveled against him and given a chance to respond; and, most importantly,
3. That the motion reflects whether a grievance has been filed with the appropriate state disciplinary authority.

Compean is a decision of the Attorney General of the United States that will henceforth govern all immigration courts and the Board of Immigration Appeals, entities overseen by the Justice Department's Executive Office for Immigration Review. Compean has its genesis in three different removal cases: Matter of Compean , Matter of Bangaly and Matter of J-E-C . Compean and Bangaly both were denied cancellation of removal because they failed to satisfy the Lozada factors. J-E-C dealt with three aliens whose counsel’s failure to file a brief did not prejudice the outcome of their proceedings because they would have been removed if the brief had been filed anyway.

The Attorney General in Compean ruled that aliens in removal proceedings have a statutory privilege to retain counsel but nevertheless have no constitutional right to counsel, including government appointed counsel. Further, Compean holds that aliens have no Sixth Amendment right to counsel in removal proceedings (which are civil in nature) since the Sixth Amendment applies only to criminal proceedings. Although the Fifth Amendment applies to removal proceedings, its due process protections do not include a general right to counsel or a specific right to effective assistance of counsel, according to Compean .  Due process can only be violated by state action in alien removal proceedings. Because private attorneys retained by aliens in removal proceedings are not state actors, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings.

Compean provides, however, that 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, even though the Constitution and the immigration laws don’t entitle an alien in removal proceedings to relief for his lawyer’s mistakes. Significantly, an alien must show the Justice Department that the lawyer’s mistakes were “egregious” as a threshold question before reopening the proceedings will even be considered. In cases where an alien moves to reopen beyond the applicable time limit, the alien must show that the alien exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance. The alien must also show that he or she has suffered prejudice from the lawyer’s errors, namely, if not for the deficient performance by the attorney, the alien would have been entitled to the ultimate relief he is seeking.

The Attorney General stressed that there is a strong public policy interest in ensuring that a lawyer’s deficiencies do not undermine the fairness and accuracy of removal proceedings. That consideration must be balanced, according to Compean , with a strong public interest in the expeditiousness and the finality of removal proceedings. Therefore removal proceedings will be reopened only in extraordinary cases where the lawyer’s deficient performance likely changed the outcome.

If and when the lawyer’s deficient performance is sufficiently egregious, then Compean ’s “improvements” based on the “revealed ways” of the practical experience of the past twenty years of applying the Lozada factors become operational. None of these new requirements can be waived by the Board of Immigration Appeals (“BIA”). “Substantial compliance” is not acceptable in contrast to what several courts allowed in the compliance of Lozada factors. An alien who seeks to reopen his removal proceedings based on the deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the claim. It is mandatory that the alien attach to his motion five sets of documents. If any of these documents are unavailable, the alien must explain why the documents are missing rather than non-existent and the alien must summarize the document’s contents in his affidavit. The documents required are:

1. A copy of the alien’s performance agreement with the attorney. If there was no written agreement, the alien must outline in his affidavit what the lawyer verbally agreed to do;
2. A copy of a letter to the alien’s former attorney specifying the lawyer’s deficient performance and a copy of the lawyer’s response, if the lawyer ever responded;
3. A complete and signed grievance addressed to, but not necessarily filed with, the appropriate state bar disciplinary authority. The Attorney General in Compean reasoned that Lozada inadvertently contributed to the filing of unfounded and frivolous complaints to lawyer regulators. Compean leaves to the BIA the option of referring any grievance to a lawyer regulator or to the Executive Office For Immigration Review Disciplinary Counsel for further action;
4. A copy of any document or evidence, or an affidavit summarizing testimony, that the alien alleges the first attorney failed to submit. Such information has to be persuasive enough so that  it's inclusion in the record in the initial proceeding would have had a significant impact on the disposition of the matter; and
5. A prescribed signed statement by the alien’s new counsel stating, “Having reviewed the record, I express a belief, based on reasoned and studied professional judgment, that the performance of my client’s former counsel fell below minimal standards of professional competence.” This requirement “will further discourage meritless claims by serving as a reminder that challenges to the performance of another lawyer should not be made lightly.”

After Compean , the Board may reopen a removal hearing on the basis of a lawyer’s deficient performance that occurred subsequent to the entry of a final order of removal. Different circuits have disagreed whether such post-order performance was within the purview of Lozada .

Lozada was seriously challenged once before. In Matter of Assad , 23 I & N Dec. 553 (BIA 2003), the BIA acknowledged that there was, “some ambiguity in the basis set forth in Lozada for aliens to assert ineffective assistance claims,” but did not overrule the prior decision. The BIA ruled in Assad that, “Since 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 meaningful representing his or her case.” The Attorney General in Compean asserted that, five years after Assad , the ruling no longer seems viable as several courts of appeal have rejected the proposition that there is a right to effective assistance of counsel in removal proceedings. Compean notes that the courts of appeals have diverged on issues such as whether to treat the Lozada factors as mandatory. Since the Attorney General viewed removal proceedings in the wake of Lozada to be balkanized and at great variance around the country, he ordered a review of the BIA’s position on the constitutional questions here as well as the question of how to best resolve an alien’s claim that a removal proceeding was prejudiced by lawyer error.

Interestingly, the Attorney General applied the Lozada factors in the three instant cases before him. The Attorney General affirmed the BIA’s decisions denying all three aliens’ motions to reopen. Compean ’s motion was ruled without merit for three reasons: he failed to establish that his former lawyer had committed an egregious error or that he was prejudiced by the lawyer’s conduct and that the Form I-130 which Compean claimed his former lawyer failed to file was in actuality part of the record. Bangaly was denied on either of two grounds: Bangaly didn’t give his former lawyer notice of the lawyer’s alleged deficiencies or a chance to respond and Bangaly failed to show that if his lawyer had filed the brief Bangaly alleged he neglected that it was unlikely Bangaly would have obtained a continuance, let alone be allowed to stay in the United States. Finally, the J-E-C respondents, unlike Compean and Bangaly, complied with the Lozada factors, but failed to establish prejudice from the failure of the former lawyer to file an appellate brief because the new lawyer’s brief was unpersuasive.

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