Effective Assistance of Counsel for Immigrants: Change you can believe in

Last August the Blog of Legal Times reported that 2d Circuit Judge Robert Katzmann

and the 9th Circuit's M. Margaret McKeown had described as a "tsunami" the flood

of immigration cases which had gone from 4% to 39%! of the Court of Appeals docket.

BLT reported: "By the time we get the case, it's often too late," said Katzmann. "It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good." The surge in cases began, panelists said, after then-Attorney General John Ashcroft streamlined the removal process in "post 9/11" 2002 measures. That, McKeown said, had the effect of giving the attorney general "a clean plate and a clean desk".

In the Compean case another AG - Michael Mukasey - made things worse on January 7, 2009. He set aside the 20 year-old Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), which allowed immigrants a new chance if they could prove their attorneys had been ineffective. Immigrants have no right to counsel, Mukasey affirmed, unless charged with a crime. True enough if the only foundation for "effective assistance of counsel" is in the 6th Amendment, which establishes the adversary nature of the criminal justice system.

Immigration lawyers of the American Immigration Law Foundation (AILF) sounded the alarm in a brief urging Attorney General Eric Holder to reverse the policy. Circuit court decisions like Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) held that 5th Amendment due process demands fundamental fairness - which is undermined if a lawyer in a removal proceeding fails to meet the standards of competence demanded by rules of professional conduct.

Now Holder has responded by vacating the Compean ruling and directing immigration judges to apply existing standards.

Once before in my career have I seen this kind of response by courts to repudiate executive policy - that in protest of the Reagan administration's policy of "non-acquiescence" in court rulings in Social Security disability cases. SSD cases swelled the federal court dockets. As a practitioner I found myself often before U.S. District judges angered by the United States policy, disposed to reverse denials of benefits, and ready to award benefits and approve Equal Acccess to Justice Act counsel fees under 5 USC 504.