Missouri & Illinois Immigration Attorney Jim Hacking Explains the Test of Ineffective Assistance of Counsel in Deportation

In June 2009, Attorney General Eric Holder vacated Matter of Compean, a decision by former Attorney General Michael Mukasey that all but did away with appeals for ineffective assistance of counsel in deportation proceedings. Compean required that a noncitizen prove not only that the actions by their lawyer were egregious but also that they prejudiced the outcome of the proceeding. Holder’s decision to vacate Compean re-instated Matter of Lozadaas the governing law for deportation proceedings.

Under Lozada, there are three requirements for noncitizens who wisht to appeal a decision because of ineffective assistance of counsel. First, the noncitizen must submit a motion (most likely a motion to re-open), supported by an affidavit explaining what their former lawyer did wrong. Next, the noncitizen must inform their previous lawyer of the allegations and give that lawyer the opportunity to respond to the allegations. Finally, the noncitizen must file a grievance against their former lawyer with their former lawyer’s bar.

The requirements of Lozada were created to try to stop what had become a popular delaying tactic during deportation proceedings. Before Lozada, one way to slow deportation was to claim ineffective assistance of counsel and push for a new hearing. Lozada took away that strategy by forcing any ineffective assistance claim to be coupled with a complaint to the bar against the former attorney. This meant that attorney could face sanctions if a former client filed an ineffective assistance claim and took away the incentive to use such claims dishonestly.

Compean caused controversy when it was handed down in 2009. Attorney General Mukasey re-affirmed in the decision that noncitizens have no right to an attorney during a deportation proceeding. He went on to state that since the state didn’t have to provide a lawyer, the poor performance of the lawyer chosen by the noncitizen is not state action and, therefore, does not violate due process. Mukasey then said that reopening cases due to poor performance by the noncitizen’s counsel was left up to the discretion of immigration judges and the BIA.

When Attorney General Holder vacated Compean, he also set into motion the process for developing new rules for the Executive Office of Immigration Review (EOIR) for what is required to prove ineffective assistance of counsel. These new rules have yet to be completed. So, for the time being, Lozada remains the law for ineffective assistance of counsel appeals in deportation proceedings.

If you think that you may have an ineffective assistance of counsel claim in a deportation proceeding or if you’re looking for an experienced immigration lawyer call the Hacking Law Practice at (314) 961-8200 or by filling out the short online contact info form.