The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey

Southern California Law Review Postscript, Vol. 82, No. 1, 2008

10 Pages Posted: 24 May 2009 Last revised: 28 May 2010

See all articles by Patrick J. Glen

Patrick J. Glen

Government of the United States of America - Department of Justice

Date Written: May 23, 2009

Abstract

This brief essay deals with the United States Court of Appeals for the Fourth Circuit's recent decision in Afanwi v. Mukasey. In that case, the Fourth Circuit became the first federal appellate court to hold that ineffective assistance of counsel in immigration proceedings cannot constitute a violation of the alien's Fifth Amendment right to due process. This holding is contrary to the holdings of 9 of the remaining 10 courts of appeals that have addressed the issue. Despite the vast weight of jurisprudential opposition to the Fourth Circuit's decision, however, Afanwi was correctly decided. Because there is no constitutional right to counsel in immigration proceedings, and thus no obligation on the part of the state to provide counsel, there can be no constitutional violation when retained counsel performs ineffectively.

The instant essay explores the Supreme Court's decisional law regarding when the ineffective assistance of counsel may be imputed to the state for constitutional purposes, and weighs that body of law against the reasoning of those courts of appeals that have found a due process right to effective assistance of counsel in immigration proceedings. Having explored the false underpinnings of these decisions, the Fourth Circuit’s reasoning in Afanwi is presented. Although a trend towards the Fourth Circuit's rationale is not likely, the issue is now squarely primed for Supreme Court review; in the foreseeable future, perhaps, the issue will then be a matter of settled (non) constitutional law.

Keywords: Immigration law, administrative law, constitutional law, ineffective assistance of counsel

Suggested Citation

Glen, Patrick James, The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey (May 23, 2009). Southern California Law Review Postscript, Vol. 82, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1409202

Patrick James Glen (Contact Author)

Government of the United States of America - Department of Justice ( email )

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
United States
202-305-7232 (Phone)

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