The Right to a Remedy for Ineffective Assistance of Counsel

Immigrants reasonably rely on their lawyers’ advice, and they expect their lawyers to be knowledgeable about immigration law and procedure. They count on their lawyers to be their voice in immigration court when facing removal and help ensure that they have a meaningful opportunity to be heard. In the great majority of cases, lawyers competently represent their clients’ interests. But what happens in those occasional situations where the immigrant is defrauded by an unscrupulous lawyer, or an otherwise competent lawyer makes an inadvertent mistake that results in the person being ordered removed from the United States? Certainly, a person should not be deprived of the opportunity to present a defense in removal proceedings because of his or her lawyer’s conduct.

The courts and the Department of Justice have long recognized that the right to counsel must mean that a person has a remedy for ineffective assistance of counsel. Over 20 years ago, the Department of Justice established a framework for evaluating ineffective assistance of counsel claims and providing remedies. This framework, however, has proven to be severely flawed. It has elevated form over substance; resulted in protracted litigation and unnecessary expenditure of resources; pitted lawyers against one and other; and most significantly, deprived immigrants of their only opportunity to present their cases.

The Department of Justice now has an opportunity to develop a new framework that meaningfully protects the right to counsel. Soon after coming into office, Attorney General Holder vacated a decision issued by former Attorney General Mukasey that would have made it more difficult for immigrants to obtain a remedy when their lawyer was incompetent. Attorney General Holder directed the Executive Office for Immigration Review (EOIR)—the agency within the Department of Justice that houses the immigration courts and the Board of Immigration Appeals—to initiate rulemaking procedures to evaluate and possibly modify the current framework for evaluating ineffective assistance of counsel claims.

This month, the American Immigration Council (formerly the American Immigration Law Foundation) and the American Immigration Lawyers Association sent a letter to EOIR recommending steps the agency can take to better protect victims of ineffective assistance of counsel and help ensure that all immigrants in removal proceedings are afforded a fair hearing. The letter recommends that EOIR’s new framework strive to achieve the following:

  • Ensure that all noncitizens in removal proceeding have a fair opportunity to be heard
  • Promote quality representation and ensure that the immigration bar meets ethical and professional standards
  • Reduce the need for litigation and promote judicial efficiency.

Language and cultural barriers and lack of knowledge about the immigration system mean that immigrants must have access to competent counsel. However, these realities also mean that immigrants are susceptible to fraudulent practices. Victims of ineffective assistance of counsel may not immediately realize that their lawyer did something wrong, and they may not be equipped to bring appropriate claims to the immigration agencies. EOIR’s new framework must reflect these realities and the challenges that immigrants in removal proceedings face.

Photo by Michael Flick.

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