Split Over the Right to Effective Counsel in Immigration Proceedings - Circuit Splits

This issue has been building for a while. In January 2009 - the waning days of the Bush administration -  AG Michael Mukasey in the Compean case repudiated the body of law that entitled aliens to relief if their attorney was shown to be incompetent. That measure was quickly renounced by Attorney General Holder.  But the bigger question is - if there is a right to due process in deportation (removal) proceedings does it extend to the right to effective assistance of counsel (which Congress has steadfastly refused to supply)? The Fifth Amendment (in the Scottsboro case - Powell v. Alabama) was the foundation for effective assistance cases before the 6th Amendment was recognized in Gideon v. Wainwright.

The Third Circuit has identified the circuit split (the 4th and 8th deny the right) as ripe for Supreme Court review. - GWC

Split Over the Right to Effective Counsel in Immigration Proceedings - Circuit Splits:

"Today’s post covers yet another circuit split over the applicability of the Due Process Clause. This time, however, the circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.
As the Third Circuit recently illustrated in the following footnote, this question has produced a circuit split that can only be described as "ripe for review":
Because immigration proceedings are civil rather than criminal in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Fadiga, 488 F.3d at 157 n.23. But we have recognized (along with a majority of our sister Courts of Appeals) that "[a] claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process." Id. at 155; see also Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).3"

h/t Legal Ethics Forum

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