The Immigrant Struggle for Effective Counsel: An Empirical Assessment

Abstract

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. §1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation here either.

One question that flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel (IAC) petitions, which in immigration are rooted in the Due Process Clause. Some circuit courts of appeals have held that a specific agency within the Department of Justice – the Board of Immigration Appeals (BIA) – has the sole, final decision-making authority on these claims. Other circuit courts, in contrast, have stated that because IAC petitions are constitutional in nature, noncitizens are entitled to take BIA decisions to Article III appellate courts.

As this study shows, statutory text, precedent, and the inscrutability of many of the BIA’s rulings support the notion that the federal circuit courts should retain jurisdiction in these cases – even given Thuraissigiam. By creating a unique dataset containing 1,615 cases, this study empirically evaluates those publicly available ineffective assistance of counsel judgments delivered by the BIA. The results reveal that the BIA’s holdings often are summarily issued and lack detailed explanation, with the government prevailing in most instances. With the stakes so high, it is imperative that Article III circuit courts be able to independently review these ineffective assistance cases, especially before the finality of a negative immigration order takes effect.

Keywords: immigration law, due process, ineffective assistance of counsel