Holder Vacates Matter of Compean
Attorney General Eric Holder’s Order in Matter of Compean:
New citation: 25 I&N 1 (A.G. 2009)
• On January 7, 2009, just a few weeks before leaving office, Attorney General Mukasey decided in Matter of Compean that non-citizens do not have a constitutional right to effective assistance of counsel in removal (a.k.a. deportation) proceedings.
• He also announced new procedures through which non-citizens may raise non-constitutional ineffective assistance claims before the Board of Immigration Appeals. The changes made it significantly harder for non-citizens to make ineffective assistance of counsel claims.
• Attorney General Mukasey’s decision overruled long-settled precedent in the Board of Immigration Appeals. With insufficient public input, it made major changes to the well-established set of procedures that the Board had developed.
Today’s Order by Attorney General Holder:
• Attorney General Holder’s order withdraws the previous Attorney General’s order, and restores the law to what it was before that January order issued. The new order says that rather than use an order in a pending case to make significant changes to the process by which non-citizens may make claims of ineffective assistance of counsel in removal proceedings, as the previous Attorney General did, the Department of Justice will instead initiate ordinary rulemaking procedures, solicit public input, and, if appropriate, issue a new regulation governing such claims.
• The Attorney General issued this order for 2 reasons:
o First, to ensure that there is a fair, accessible process in which non-citizens can come before the Board of Immigration Appeals and be heard on their claims of having received ineffective assistance of counsel in immigration proceedings. Non-citizens should not be removed from the United States simply because of their lawyers’ ineffectiveness.
o Second, to ensure that the procedural requirements for making such claims be established through an open, deliberative process, in which the public has a full and fair opportunity to participate.
• In removal proceedings, the Board of Immigration Appeals decides a person’s very right to be present in the United States. With so much at stake, these proceedings must be fair. Ineffective assistance of counsel in immigration proceedings is a grave problem, and non-citizens are often especially vulnerable to abuse by their lawyers because they are unfamiliar with the American legal system and the law is exceedingly complex. The integrity of immigration proceedings depends in part on non-citizens having a meaningful opportunity to be heard when they claim that incompetent, unethical, fraudulent, or absent performance by their lawyers affected the Board’s decision to remove them.
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