Immigration Law Associates, PC

DOJ Eyes Bids to Reopen Immigration Cases Due To Bad Lawyering

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On July 28, 2016, the Department of Justice’s Executive Office for Immigration Review (EOIR) published a proposed rule addressing ineffective assistance of counsel on immigration matters. The proposed rule, titled Motions to Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, was drafted as a result of the decision in Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009) in which former Attorney General Eric H. Holder Jr. directed the EOIR to initiate rulemaking regarding the governance of motions to reopen based on ineffective assistance of counsel.

Under the proposed rule, individuals seeking to reopen proceedings based on ineffective assistance of counsel have to establish that their prior counsel represented them ineffectively and that, with limited exceptions, they were prejudiced as a result. The proposed rule sets guidelines as to what qualifies as ineffective assistance and circumstance that pint that an individual has suffered prejudice.

The proposed rule stresses the inclusion of the following to prove that an individual’s attorney provided ineffective assistance and that the individual in turn, suffered prejudice: an affidavit or a written statement executed under the penalty of perjury, providing certain information;  a copy of any applicable representation agreement;  evidence that the prior attorney was notified of the allegations and of the filing of the motion; and evidence that a complaint was filed with the appropriate disciplinary authorities.

The EOIR will accept comments from the public regarding the proposed rule until Sept. 26, 2016. For details on how to submit comments, please see the proposed rule’s notice (NPRM).

You can view the proposed rule at: https://www.federalregister.gov/articles/2016/07/28/2016-17540/motions-to-reopen-removal-deportation-or-exclusion-proceedings-based-upon-a-claim-of-ineffective


Case History:

In the June 2009 Matter of Compean, Bangaly & J-E-C- decision, Attorney General Holder vacated the January 2009 in Matter of Compean decision by Attorney General Mukasey. In the January 2009, Matter of Compean decision, Attorney General Mukasey had rejected the prior Lozada framework, in which the Board of Immigration Appeals had established the procedural requirements for filing a motion to reopen deportation proceedings based upon a claim of ineffective assistance of counsel, which required an alien (immigrant) to show that he was prejudiced by the action or inaction of his attorney.  The January 2009 decision rejected the Lozada framework’s constitutional reasoning and set forth a new substantive and procedural framework for reviewing cases and for the formulation of the prejudice.

In the June 2009 decision, Attorney General Holder ruled that the Lozada standard was a better one because it afforded all interested parties a fuller and fairer opportunity to participate and more effectively called for all relevant facts and analysis The January 2009 Compean decision was vacated in its entirety and the new 2009 decision called for pre-Compean standards to be applied to all pending and future motions to reopen based of ineffective assistance of counsel, regardless of when the motions were filed. The EOIR is to assist with rulemaking in the application of pre-Compean standards.



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