Constitutional Right to Counsel in Deportation Proceedings: The Attorney General’s Hesitation.

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: