The Death Knell for Constitutional Ineffective Assistance of Counsel Claims in Immigration Proceedings
8 Pages Posted: 25 May 2009
Date Written: May 24, 2009
The article addresses the Attorney General's recent decision in Matter of Compean, Bangaly & J-E-C-, in which he determined that aliens may not assert a constitutional claim of ineffective assistance of counsel in immigration proceedings. Along with this constitutional holding, the Attorney General also found that the Board could grant relief in the exercise of its discretion, and established a comprehensive substantive and procedural framework for resolving such claims.
This issue is perhaps the most contentious current issue in immigration law. Three federal courts of appeals have ruled consistent with the Attorney General's decision, yet the eight other federal courts of appeals with jurisdiction under section 242 of the Immigration and Nationality Act have concluded that aliens do have a due process right to the effective assistance of counsel. Moreover, the decision overrules two previous decisions of the Board of Immigration Appeals assuming that the Fifth Amendment did guarantee such a right. Accordingly, the reorientation of the legal debate represented by the Attorney General's definitive decision is difficult to understate.
Keywords: immigration law, due process, constitutional law, ineffective assistance of counsel, administrative law
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