Attorney General Eric Holder’s vacation of his predecessor’s decision in Matter of Compean may signal an eventual shift in administration policy, but it has little jurisprudential impact.  While AG Holder reinstated the prior standard for proving ineffective assistance of counsel in deportation proceedings, he stopped short of actually declaring that there is a constitutional right to counsel in such proceedings, which are characterized as civil rather than criminal in nature.

In January of this year, former AG Michael Mukasey sought to eliminate any pretense of right to counsel by reversing the 1988 Board of Immigration Appeals decision in Matter of Lozada (19 I&N Dec. 637).  The Lozada standard, which Mukasey considered too forgiving for immigrants to warrant his reversal at the eleventh hour is this:

A motion based upon a claim of ineffective assistance of counsel should be supported by an affidavit of the allegedly aggrieved respondent attesting to the relevant facts. [T]hat affidavit should include a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken on appeal and what counsel did or did not represent to the respondent in this regard. Furthermore, before allegations of ineffective assistance of former counsel are presented to the Board, former counsel must be informed of the allegations and allowed the opportunity to respond. Any subsequent response from counsel, or report of counsel’s failure or refusal to respond, should be submitted with the motion. Finally, if it is asserted that prior counsel’s handling of the case involved a violation of ethical or legal responsibilities, the motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.

And then show prejudice!

Having reinstated, and applied these standards to the specific facts of the three consolidated cases in Compean, predictably, Attorney General Holder arrived at the same conclusion as Mukasey.  One of these cases involves a native of Mali who came to the United States on a non-immigrant visa in 1998.  In 2002, he married a United States citizen.  In 2003, he was placed in removal proceedings because he had overstayed his non-immigrant visa.  His petition for adjustment of status based on his family relationship was denied by the immigration service because his wife failed three times to appear for an interview.  He sought additional continuance to present his wife, but the immigration judge in the removal case denied the continuance.  His attorney filed a notice of appeal to the BIA challenging the denial of continuance, and promised to file a brief explaining the reasons for the client’s wife’s absence for the interview.  However, the attorney failed to submit the required brief.  On that basis alone, the BIA affirmed the Immigration Judge’s denial for a continuance.  The immigrant, through another attorney, submitted a motion to reopen.  The BIA denied this motion on the ground that the new attorney failed to give the previous attorney a chance to respond as required by Lozada.  That’s basically the nature of due process Mr. Immigrant from Mali got from the BIA as well as the two Attorneys general.  He will soon be separated from his family and deported to Mali, and barred from coming back.

The difference between the two Attorneys General is simple: Mukasey clearly thinks Lozada gives too much due process right to immigrants.  Holder probably thinks that it is just about enough.  And, of course, the true source of this controversy is a more fundamental constitutional question i.e., whether an immigrant, or more pejoratively, an alien, has a Fifth Amendment Right to counsel in removal proceedings.  Mukasey has no confusion about it: the answer is a resounding no. Holder is not sure.  The source of the confusion is this: since 1889, immigration removal proceedings have been considered civil proceedings.  The Fifth Amendment due process right to counsel, just like the Sixth Amendment right to counsel, does not apply in civil proceedings.   Mukasey’s ruling on this issue is predicated on the Supreme Court’s 1984 holding in INS v. Lopez-Mendoza, that “a deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.”  What Mukasey does not mention in his Compean opinion is that Lopez-Mendoza itself is predicated on the Chinese Exclusion Case of 1889: the same case that held: “If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.”  This provided the basis for the plenary power doctrine in immigration and has consistently been used as a justification for the denial of due process rights to immigrants.

The essential point is that the proposition that deportation proceedings are civil proceedings is a fiction invented by the Chinese Exclusion case.  There is nothing civil about deportation proceedings for several reasons:  They invariably involve the liberty interest of the individual just like criminal proceedings. The final result inevitably involves imprisonment and forced transportation of the individual from a place where he wants to be to a place where he does not want to be. As far back as 1922 Justice Brandeis said deportation takes a person from “all that makes life worth living.” In fact, it was historically considered a criminal punishment. In Seventeenth Century England, deportation was a judicially sanctioned penalty. Historians suggest that deportation, sometimes called banishment, was deemed an attractive form of criminal penalty for serious offenses because it essentially accomplished what the death penalty was designed to accomplish, albeit a little bit more mercifully.  According to one commentator, “[e]xecution is a simple punishment, quick, effective, economical, but not merciful. Hence perhaps the resort to what seemed to many to be the next best thing–banishment.”

The similarities between immigration deportation proceedings and criminal proceedings are not limited to the involvement of liberty interests and the physical restraint and removal of the individual. The actual proceedings are also quite similar. The government is represented by an attorney and the proceedings are quite adversarial. The respondent, just like a criminal defendant, is often detained and appears in a courtroom with a prison uniform guarded by a police officer at all times. The respondent answers charges filed against him by attorneys representing the Department of Homeland Security (DHS). If the respondent is unsuccessful in defending against the charges, he is sent back to wherever it is believed that he came from. The actual deportation involves the physical custody of the deportee before deportation, and the forced physical removal of the individual, often in handcuffs or other forms of body chains. For anyone observing these proceedings and following the consequences thereof, there is nothing civil about them.  As James Madison put it: “[I]f banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.” For all intents and purposes, deportation proceedings are the functional equivalent of criminal proceedings without the constitutional guarantees applicable in criminal proceedings.   Again, the reason they are classified as civil proceedings is simple:  the Chinese exclusion case of 1889.  Professor Louis Henkin calls the continued use of the theories of this case a national “embarrassment”.  This was a case decided in an era when the due process clause of the Fifth Amendment was not the hallmark of this nation.  The reliance on this case must stop.   In fact, as Mukasey himself admits, over the years, the Courts of Appeals for the 1^st, 2^nd, 3^rd, 6^th, 9^th,10^th,  and 11^th Circuit have all recognized a constitutional right to counsel in removal proceedings.  In light of this, Attorney General Holder’s hesitation to make that categorical determination in Compean is regrettable.