Rachel Browning’s Legal Blog

Attorney General Eric Holder today withdrew the decision issued by former Attorney General Mukasey in Matter of Compean, Bangaly & J-E-C, 24 I&N Dec. 710 (A.G. 2009), during the remaining days of the Bush Administration, which effectively changed the standard applied to motions to reopen removal proceedings based on an alien’s claim of ineffective legal representation in those proceedings.  Attorney General Mukasey’s decision overruled Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), to the extent that it indicated an alien had a constitutional right to effective assistance of counsel. In Lozada, the BIA had established the procedural requirements and standards for filing a motion to reopen; stating that a motion based on a claim of ineffective assistance of counsel required the alien to show that his due process rights were affected and he was prejudiced by counsel’s performance.  The BIA’s decision in Lozada was one that had stood for over 20 years when the former Attorney General issued his controversial decision.  Mukasey’s discretionary ruling set forth a new substantive and procedural framework for reviewing these claims, and rejected the constitutional basis of Lozada’s reasoning.  Instead, Mukasey’s ruling in Matter of Compean, held that while aliens had no right to a reopening of their case based on ineffective assistance of counsel, such cases could be reopened upon an act of “administrative grace.” 

Attorney General Holder stated during his confirmation hearings that he would review the former Attorney General’s decision.  He also indicated that he disagreed with the reasoning of Matter of Compean.  Standing by his stated goal, Attorney General Holder revisited Compean and the issues invoked, and vacated the decision.  He also directed the Board of Immigration Appeals and Immigration Judges to continue applying the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.  In addition, Holder directed the Acting Director of the Executive Office for Immigration Review to initiate rulemaking procedures as soon as practicable to evaluate the Lozada framework and to determine the modifications to be submitted for public consideration.  “The preferable administrative process for reforming the Lozada framework,” Attorney General Holder stated, “is one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.” 

If you have questions or would like additional information about removal proceedings, motions to reopen or other immigration issues, please contact the Immigration Attorneys of Smith & Garg in Houston, The Woodlands, Spring, Texas and Long Beach, California.