EOIR Proposes Regulations re Ineffective Assistance of Counsel

The Executive Office for Immigration Review has issued a Notice of Proposed Rulemaking, for which it seeks public comment, on Motions to Reopen Removal, Deportation or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel.  The proposed rule would create federal regulations that establish procedures and set standards for the filing of motions to reopen based on ineffective assistance of counsel, and comes as a response to the Attorney General’s directive in Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009) (also known as “Compean II”) for EOIR to develop such regulations. 

Immigration law is notorious for having its fair share of attorneys whose level of practice falls far below acceptable levels of advocacy.  To be fair, a number of stellar immigration lawyers advocate zealously for their clients by engaging in deep fact investigation, remaining abreast of changes in the law, keeping their clients fully informed of their cases, and charging reasonable rates.  Many private immigration lawyers practice at the cutting edge of immigration law’s greatest complexities, and see the government’s coercive power at its height through their clients’ stories, leading them to pursue broader change in the immigration laws.  But there unfortunately exist a number of lawyers who instead file boilerplate forms, fail to anticipate applicable bars to relief or anticipate the need for relevant waivers, don’t spend the time needed to develop detailed factual claims or identify forms of relief, don’t return their client’s phone calls, improperly delegate work to non-lawyer professionals, miss filing deadlines and even miss court dates — all while charging clients exorbitant fees.  Many clients who are undocumented are afraid to report even the most egregious attorneys for unethical practice to the relevant state bar or law enforcement authorities.   Also, given immigration law’s complex nature, many well-intentioned and ethical lawyers may find themselves doing what all lawyers are prone to doing — making mistakes.  

For years, the standards governing ineffective assistance-based claims had been established in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).  But in early 2009, then-Attorney General Mukasey issued the first Matter of Compean decision, 24 I&N Dec. 710 (A.G. 2009), which stated that “there is no Fifth Amendment right to effective counsel in removal proceedings,” and provided for motions to reopen based on ineffective assistance of counsel to continue only as a matter of “administrative grace.”  Several months later, Attorney General Holder issued the Compean II decision, which vacated Compean I, and reinstituted the Lozada standard until the EOIR could develop regulations.  One of the downsides of Lozada, as the Federal Register announcement emphasizes, is that the various circuits have at times “adopted varying interpretations for determining compliance with Lozada requirements, establishing prejudice, and applying equitable tolling to the filing deadlines” for such motions to reopen, and have also adopted “varying standards for prejudice.”

 Comments are due September 26, 2016 and may be submitted electronically here.

-JKoh