Ineffective Assistance of Counsel in Removal Proceedings: 'Matter of Compean and the Fundamental Fairness Doctrine'

Abstract

Attorney Genenal Mukasey surprised and outraged the immigration law community with his decision in Matter of Compean. In his decision, adopted in January 2009, during his last days of holding the position, Mukasey ruled that "aliens do not have a constitutional right to effective legal representation in removal proceedings" under the Fifth Amendment.

In June 2009, Attorney General Holder vacated Matter of Compean and restored Matter of Lozada and Matter of Assaad. Holder also directed the Acting Director of the Executive Office for Immigration Review (EOIR) to initiate a rule-making procedure to evaluate the Lozada framework in order to propose a final rule. This "final rule" is extremely important because the circuit courts are currently divided regarding the adjudication of motions to reopen in cases of ineffective assistance of counsel.