AMERICAN IMMIGRATION LAW FOUNDATION

AMERICAN IMMIGRATION LAW FOUNDATION ________________________________________________ February 6, 2009 Attorney General Eric Holder

U.S. Department of Justice 950 Pennsylvania Ave, NW Office of the Attorney General Room 5114 Washington, DC 20530 Re:

Matter of Compean, Bengaly, J-C-C- et al 24 I & N Dec. 710 (A.G. 2009)

Dear Attorney General Holder: Undersigned amici curiae write in support of Respondents’ motions to vacate and reconsider the Attorney General’s decision in Matter of Compean, 24 I & N Dec. 710 (A.G. 2009). In Compean, the outgoing Attorney General employed a rarely used procedural device and after an expedited briefing schedule, issued this sweeping decision rejecting the right to counsel and finding that there is no right to remedy ineffective assistance of counsel. The decision overrules decades of precedential decisions from the Board of Immigration Appeals and disagrees with numerous courts of appeals on an issue of great national significance. We applaud your statement in your Congressional testimony that you intend to reexamine Compean.1 Amici curiae share your view that the Constitution requires removal proceedings to be fundamentally fair and accordingly, agree that it is appropriate to reexamine Compean to ensure that all noncitizens are afforded fair proceedings. Given that 1

In response to written questions about Compean from Senators Hatch and Feingold, Mr. Holder responded, “The Constitution guarantees due process of law to those who are the subjects of deportation proceeding. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General.” Hearings on the Nomination of Eric Holder to be Attorney General before the Senate Judiciary Committee, 111th Cong. (2009) (statement of Eric Holder in response to questions submitted by Sen. Orrin Hatch and Sen. Russ Feingold), available at http://judiciary.senate.gov/nominations/AttorneyGeneralEricHolder-QuestionsForTheRecord.cfm. 1331 G Street, NW, Suite 200 · WASHINGTON, DC 20005 · TEL: 202-507-7500 · FAX: 202-742-5619 · www.ailf.org

Attorney General Mukasey issued Compean just days before the end of his term, it is wholly appropriate for you, as you testified, to reexamine the decision in the spirit of the White House Memorandum of January 20, 2009, 74 Fed. Reg. 4435 (Jan. 26, 2009). In the January 20, 2009 Memorandum, the President directed that all new regulations issued by the departing administration be submitted for review and approval by the new agency heads. Further, the process by which Attorney General Mukasey reviewed these cases and issued Compean was too sudden and hurried for many interested parties to consider and file briefs addressing the wide-ranging questions presented. Those briefs that were filed did not cover all the issues Attorney General Mukasey addressed in Compean. We respectfully submit that full briefing by all interested parties on all issues raised by the Compean decision will assist you in your thoughtful, deliberate review. Therefore, we urge you to vacate Matter of Compean and set a briefing schedule that allows briefing by all parties, including amici curiae.2 A.

You Have the Authority to Vacate Compean and Institute a Fair Process for Reconsideration.

The Attorney General has the authority both to direct that the BIA refer cases to him for decision and to vacate and reconsider any previous Attorney General decision. See 8 C.F.R. § 1003.1(h)(1)(i); Matter of R-A-, 24 I. & N. Dec. 629 (A.G. 2008) (vacating stay order issued by previous Attorney General). See also 8 U.S.C. § 103(g) (Attorney General shall review administrative determinations in immigration proceedings as necessary for carrying out his duties). Therefore, you can remedy the hasty decision-making process in Compean by vacating the decision and permitting briefing by a wide range of interested parties. B.

The Compean Decision was Incorrect for Numerous Reasons. 1.

Attorney General Mukasey Reached for and Unnecessarily Determined a Constitutional Question.

Attorney General Mukasey improperly reached for and decided a constitutional question in Compean. The Supreme Court has made clear that constitutional questions should be reached only as a last resort. Jean v. Nelson, 472 U.S. 846, 854 (1985). The Attorney General’s pronouncements on the constitutional questions in Compean were not necessary either to resolve these cases or even to provide a modified framework for resolution of all ineffective assistance of counsel claims.

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What follows is a truncated summary of some aspects of the brief filed by the American Immigration Law Foundation and other amici (including some of the amici signing on to this letter) on October 6, 2008, in response to the Attorney General’s notice (hereafter “AILF brief”). That brief is attached hereto. AILF and amici were not able to anticipate all of the Attorney General’s holdings, and thus respectfully request an opportunity to more fully brief the issues raised in Compean. 2

Further, as discussed below, the Attorney General’s decision failed to give meaning to the statutory right to counsel and to the Department of Justice’s regulatory scheme ensuring effective assistance for noncitizens in removal proceedings. By giving full effect to statutory and regulatory rights to full and fair proceedings, you will not need to reach the constitutional issue. 2.

Attorney General Mukasey’s Compean Decision Sharply Diverges from Prior Precedent and is in Direct Conflict with all but Two Circuit Courts of Appeals.

The Compean decision departs dramatically from longstanding agency precedent and from the majority of courts of appeals on this issue of exceptional importance. The decision overrules the agency’s longstanding position, first announced twenty years ago in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), that ineffective assistance of counsel in immigration proceedings may violate the Fifth Amendment Due Process Clause. Just five years ago, after careful consideration of these very issues, the BIA, sitting en banc, reaffirmed Lozada in Matter of Assaad, 23 I. & N. Dec. 553, 554 (BIA 2003). The BIA has applied Lozada and Assaad in scores of cases to conclude that an immigrant’s right to effective assistance of counsel was violated. See, e.g., Matter of Grijalva, 21 I & N Dec. 472 (BIA 1996); Matter of Cortez-Bravo, 2008 WL 5537824 (BIA Dec. 23, 2008); Matter of Weiqing He, 2008 WL 5244716 (Dec. 2, 2008). For more than 20 years, neither Congress nor prior Attorney Generals took any steps to overrule (or undermine) Lozada’s protection of the right to effective assistance of counsel. Courts look very skeptically at and will not defer to sudden, material alterations to a 20-year old administrative scheme. See INS v. Cardoza-Fonseca¸ 480 U.S. 421, 446 n.30 (1987); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993). Not only did Attorney General Mukasey suddenly overturn longstanding agency precedent, but he also issued a decision in direct conflict with the majority of United States Courts of Appeals. Despite the government’s frequent urgings otherwise,3 the courts of appeals continue to affirm that noncitizens have a constitutional right under the Fifth Amendment Due Process Clause to fundamentally fair removal proceedings, and that incompetent counsel may deprive people of that right. Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir. 2007) (ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if, and to the extent that, the proceeding is thereby rendered fundamentally unfair); Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) (the Fifth Amendment requires that deportation proceedings comport with due process; due process concerns may arise when retained counsel provides immigration representation that falls so short of professional duties as to impinge upon the fundamental fairness of the 3

See, e.g., Ouyoung v. Mukasey, 07-3867, 2009 U.S. App. LEXIS 224, *2-3 n.2 (2d Cir. Jan. 8, 2009) (unpublished) (“Contrary to the government’s argument, it is well-established that claims of ineffective assistance of counsel raised to the BIA in motions to reopen are rooted in the Fifth Amendment Due Process Clause, and in the statutory right to counsel….”); Al Roumy v. Mukasey, 07-3328, 2008 U.S. App. LEXIS 18472, *18 n.3 (6th Cir. Aug. 27, 2008) (unpublished) (noting that the government argued that there is no right to effective assistance of counsel and rejecting such position as conflicting with controlling precedent).

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hearing); Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (a claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment as a violation of the guarantee of due process); Sako v. Gonzales, 434 F.3d 857, 863-64 (6th Cir. 2006) (to prove he has suffered a violation of due process, the petitioner needs to establish that ineffective assistance of counsel prejudiced him or denied him fundamental fairness); Jezierski v. Mukasey, 543 F.3d 886, 890 (7th Cir. 2008), petition for cert. filed, 08-656 (Nov. 17, 2008) ("The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the [noncitizen] to proceed without the assistance of a competent lawyer would deny him due process of law...."); Nehad v. Mukasey, 535 F.3d 962, 973 (9th Cir. 2008) (an attorney’s deficient performance and the prejudice resulting from it can result in a violation of the Fifth Amendment right to due process); Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (“…a petitioner like Osei can state a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, the petitioner was denied a fundamentally fair proceeding.”); Dakane v. U.S. Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2004) (It is well established in this Circuit that a noncitizen in civil deportation proceedings has the constitutional right under the Fifth Amendment Due Process Clause to a fundamentally fair hearing, including effective assistance of counsel.) (emphasis in original).4 3.

The Attorney General Failed to Give Meaning to the Statutory Right to Counsel, and Disregarded the Justice Department’s Own Significant Involvement and Interest in Ensuring Counsel’s Performance.

In addition, Attorney General Mukasey’s Compean decision fails to give meaning to the statutory right to counsel provided in INA § 292, 8 U.S.C. § 1362, and INA § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A). See Sanchez v. Keisler, 505 F.3d 641, 649 (7th Cir. 2007) (the attorney’s performance was so deficient that Sanchez did not have the fair hearing to which the immigration statutes entitle her); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (“… aliens in deportation proceedings have a statutory right to be represented by counsel at their own expense.”); Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (“[A]liens have a statutory right to counsel, see 8 U.S.C. § 1362 …. Implicit in the right to counsel is the requirement that the assistance rendered not be ineffective.”). See also discussion in AILF brief at 20-23. Moreover, the Compean decision also discounted the role of the Justice Department itself in authorizing, investigating, and disciplining representatives who appear in immigration proceedings. See AILF brief at 4-10. 4

Only two Courts of Appeals have held that there is no constitutional right to effective assistance of counsel in removal proceedings. See Afanwi v. Mukasey, 526 F.3d 788, 79899 (4th Cir. 2008) petition for cert. filed, 08-906 (Jan. 16, 2009), and Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). Despite Attorney General Mukasey’s suggestion otherwise, the Seventh Circuit has sided with the majority and just recently affirmed that deficient performance of counsel might constitute a violation of the Fifth Amendment. See Jezierski v. Mukasey, 543 F.3d 886, 890 (7th Cir. 2008), petition for cert. filed, 08-656 (Nov. 17, 2008) (“The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the alien to proceed without the assistance of a competent lawyer would deny him due process of law.”).

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4.

By Issuing Compean, Attorney General Mukasey Created Confusion and the Potential for Inconsistencies among the Immigration Courts and the Federal Courts.

In Compean, Mukasey directed the BIA and immigration judges to “apply the framework set forth below in toto, even in circuits that have previously held that there is a constitutional right to effective assistance of counsel.” 24 I & N Dec. at 730 n 8. This direction contradicts the BIA’s own precedent requiring it to acquiesce to circuit court decisions even if there is a contrary BIA decision. Matter of Cazares, 21 I & N Dec. 188 (BIA 1966); Matter of Olivares, 23 I & N Dec. 148 (BIA 2001). See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 350 n.10 (2005) (“[T]he BIA follows the law of the circuit in which the individual case arises”); Singh v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995) (holding that the BIA “is obligated to follow circuit precedent in cases originating within that circuit”). Thus, Compean’s directive will create confusion among the immigration judges and for the members and panels of the BIA itself. The federal courts will be left to sort out the mess, likely leading to even more confusion and inconsistent results. 5.

The Attorney General’s Decision Failed to Acknowledge the Many Compelling Cases Where Compliance with even Lozada’s Requirements Worked a Significant Hardship.

As AILF and amici argued, many courts have found it necessary to relax even the standards and requirements outlined in Lozada because they were so inflexible. See AILF brief at 28-37. Further, there is an urgent need for a system to remedy simple errors, the less serious mistakes that may not rise to the level of “egregious” but that nevertheless deprive people of valuable rights. The Attorney General and federal courts, including the Supreme Court, already provide some such mechanisms through regulations5 and rules.6 Amici curiae urge you to 5

For example, 8 C.F.R. § 1208.4(a)(5)(v) anticipates the situation where an asylum applicant files the application before the one-year asylum application filing deadline but the application is rejected as not properly filed. If the applicant refiles “within a reasonable period thereafter,” this qualifies as an “extraordinary circumstance” excusing the failure to meet the asylum one-year filing deadline.

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For example, Supreme Court Rule 14.5 says: “If the Clerk determines that a petition submitted timely and in good faith is in a form that does not comply with this Rule or with Rule 33 or Rule 34, the Clerk will return it with a letter indicating the deficiency. A corrected petition submitted in accordance with Rule 29.2 no more than 60 days after the date of the Clerk’s letter will be deemed timely.” Rule 60 (b)(1) of the Federal Rules of Civil Procedure provides: b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. 5

expand these mechanisms, which will serve the goals of reducing ineffective assistance claims, easing the burden on immigration judges, the BIA, and federal courts, and avoiding wasting resources. Conclusion For the foregoing reasons and authorities, we support your decision to reexamine Compean. We respectfully urge you to vacate the decision and provide an opportunity for all interested parties to fully brief these important questions. We urge you to issue a new decision affirming the statutory and constitutional rights to counsel and to a remedy for ineffective assistance of counsel. We urge you to establish, perhaps through rule-making, an accessible system to remedy de minimus errors made in immigration proceedings. Respectfully submitted this 6th day of February, 2009. American Immigration Law Foundation As listed directly below, more than 130 organizations, law firms, and individuals support the arguments in this brief. ORGANIZATIONS: American Immigration Lawyers Association American Friends Service Committee Immigrant Rights Program, Newark, New Jersey ASISTA Immigration Assistance Capital Area Immigrants’ Rights (CAIR) Coalition Catholic Charities of Louisville Central American Legal Assistance Community Legal Services & Counseling Center, Cambridge, MA Florence Immigrant & Refugee Rights Project Florida Immigrant Advocacy Center Human Rights First Immigrant and Refugee Appellate Center, LLC Immigrant Legal Resource Center Immigrant Rights Clinic at NYU School of Law Immigration Equality Immigration Law Clinic, University of Detroit Mercy School of Law Kentucky Coalition for Immigrant and Refugee Rights (KCIRR) Kentucky May Day Coalition Mental Health Advocacy Services, Inc.; Los Angeles, CA Mexican American Legal Defense and Educational Fund National Immigrant Justice Center, a program of the Heartland Alliance for Human Needs and Human Rights National Immigration Law Center National Immigration Project of the National Lawyers Guild National Lawyers Guild-Massachusetts Chapter Northwest Immigrant Rights Project The Advocates for Human Rights

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The Hebrew Immigrant Aid Society, World Headquarters, New York, NY Tulsa Immigrant Resource Network of the University of Tulsa College of Law Washington Defender Association's Immigration Project LAW FIRMS: Anthony J. Keber, Law Office of Anthony J. Keber Berry Appleman & Leiden LLP Dady Law Office Daniel Shanfield, Esq. & Associates – Immigration Defense Duane Morris Immigration Practice Group Flynn & Clark, P.C. Gibbs Houston Pauw Joseph Law Firm, PC Kaplan, O'Sullivan & Friedman, LLP Kerry E. Doyle & William E. Graves Jr.; Graves & Doyle McNamara & McCarthy, PC Law office of Antonio Sambrano Law office of Michael D Greenberg Law Offices of Claudia Slovinsky Law Offices of Gregory Romanovsky Law Offices of Mary L. Sfasciotti, P.C. Peck Law Firm, LLC. Robert H. Beer, P.C. Russell Immigration Law Firm, LLC Scott D. Pollock & Associates, P.C. The Law Office of Mark Russo The Law Offices of Carol L. Edward & Associates, P.S. Vikram Badrinath, P.C., Tucson, Arizona Weaver, Schlenger & Mazel INDIVIDUALS (affiliations given for identification purposes only): A. Carin Weinrich, Soreff Law Alan S. Musgrave, Law Offices of Alan S. Musgrave Ally Bolour, Attorney at Law Anthony Drago, Jr., Attorney at Law Barbara Hines, Clinical Professor of Law, Immigration Clinic, University of Texas School of Law Benjamin Casper, Attorney at Law, P.A., West St. Paul, Minnesota Bennett R. Savitz, Savitz Law Offices, P.C. Bill Ong Hing; Professor of Law; University of California, Davis Brian T. O’Neill, Attorney at Law, Law Offices of Brian T. O’Neill, PC Carlina Tapia-Ruano, Attorney at Law Carol L. Edward, The Law Offices of Carol L. Edward & Associates, P.S. Charles C. Nett, Esq.; Director, Immigration Legal Services; Catholic Charities Christine Ness; Weaver, Schlenger & Mazel Christopher R. Helm, Attorney at Law, Davis Wright Tremaine LLP Daniel M. Kowalski, Editor-in-Chief, Bender's Immigration Bulletin (LexisNexis) 7

David P. McCauley, Attorney at Law Deborah S. Smith, Adjunct Professor, University of Montana School of Law Deirdre Giblin, Community Legal Services & Counseling Center Edward J. Carroll, Carroll & Scribner, PC Eric P. Lin, The Law Offices of Carol L. Edward & Associates, P.S. Erika Anne Kreider, Attorney at Law Erin T. Hall, The Law Offices of Carol L. Edward & Associates, P.S. Frances E. Valdez, Attorney at Law Greg Pleasants, Attorney at Law Harvey Kaplan, Adjunct Professor, Northeastern School of Law Holly S. Cooper, Associate Director of the Immigration Law Clinic, University of California, Davis School of Law Honorable William P. Joyce (Ret.); Attorney at Law; Joyce & Associates, P.C. Howard A. Silverman; Ross, Silverman & Levy LLP Ilana Etkin Greenstein; Kaplan, O'Sullivan & Friedman, LLP Iris Gomez, Massachusetts Law Reform Institute, Inc. Jacqueline A. Wood, Law Offices of Jacqueline A. Wood James Feroli, Attorney at Law; Immigrant and Refugee Appellate Center, LLC Jason A. Levy; Ross, Silverman & Levy LLP Javier F. Pico, Esq., Pico Law Office Jeanette Kain, Attorney at Law; Kaplan, O'Sullivan & Friedman, LLP Jeffrey Segal, Attorney at Law; Louisville, KY chapter Jon A. Haddow, Attorney at Law Joshua L. Goldstein, Esq.; Law Offices of Joshua L. Goldstein, PC Kathleen Campbell Walker, Attorney at Law Kathleen M. Curley, Attorney at Law Kathy Weber, Attorney at Law Keith Pabian, Attorney at Law, of Pabian & Russell, LLC Kirsten Schlenger; Attorney at Law; Weaver, Schlenger & Mazel Laura Mazel; Attorney at Law; Weaver, Schlenger & Mazel Lawrence D. Rosenberg, Attorney at Law, Jones Day Leta Singfield, The Law Offices of Carol L. Edward & Associates, P.S. Linda Kenepaske, Law Offices of Linda Kenepaske PLLC Lisa S. Brodyaga, Attorney at Law; Refugio del Rio Grande, Inc. Lisa Weinberg, Community Legal Services & Counseling Center Lory Diana Rosenberg, Attorney at Law Lynn Marcus and Nina Rabin, Co-directors, Immigration Law Clinic, University of Arizona Rogers College of Law Maile M. Hirota, Attorney at Law; Lynch Ichida Thompson & Hirota Maria E. Andrade, Andrade Law Office Maria J. Marley, Esq.; Law Office of Maria J. Marley, LLC Mariana Collins-Romero, Attorney, Law Offices of Roy Petty Marlene A. Dougherty, Attorney at Law Mary Jane Weaver; Attorney at Law; Weaver, Schlenger & Mazel Matthew Nickson, Attorney at Law, Houston, Texas Maurice H. and Gloria A. Goldman, Attorneys at Law Monica Schurtman, Associate Professor of Law and Immigration Law Clinic Supervisor, University of Idaho College of Law Monique Kornfeld, Attorney at Law 8

Nancy A. Peterson, Attorney at Law Patricia S. Mann, Attorney at Law Paul Shane, Attorney at Law Professor Vanessa Merton, Immigration Justice Clinic, Pace University School of Law Rachel A. Newton, Attorney at Law Rachel E. Bengtson, Attorney at Law Ragini Shah; Assistant Clinical Professor of Law; Immigration Clinic; Suffolk University Law School Rebecca A. Sim, Attorney at Law, Catholic Charities Robert E. Juceam; Attorney at Law; Fried, Frank, Harris, et al Ronald L. Abramson, Attorney at Law; McLane, Graf, Raulerson & Middleton, P.A. Rose Cahn, Law Offices of Norton Tooby Sailan Sara Yang, Attorney at Law, Yang & Sacchetti Sarah Ignatius, Executive Director, Political Asylum/Immigration Representation Project Sharryn E. Ross, Attorney at Law, Boston, MA Sheila Walsh, Attorney at Law Sok-Khieng (So-Can) K. Lim; Attorney at Law; Davies Pearson, P.C. Stephanie Smith; Attorney at Law; Weaver, Schlenger & Mazel Thomas Hutchins, Attorney at Law; Immigrant and Refugee Appellate Center, LLC Thomas J. Davis, Attorney at Law, Jones Day Thomas Stylianos, Jr., Attorney at Law Valerie Fisk, Community Legal Services & Counseling Center

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