An obituary:

Matter of Lozada (April 3, 1988-January 7, 2009) was good law for 20 years, and became a working part of the immigration litigator’s lexicon during that time. Rarely used but often useful, Lozada ensured basic Constitutional due process protections to aliens in removal proceedings, and was often the only hope for immigrants who had been ill-served by attorneys they had retained (often at exorbitant rates) and trusted to guide them through the eldritch realms of Immigrationland. It was not perfect, but it was workable. It worked.

Lozada suffered an untimely death on Wednesday when outgoing U.S. Attorney General Michael Mukasey surprised it from behind, garotted it, injected it with a shot of Bush-era executive hubris, reanimated it, and imbued the resultant chimera with an unholy taste for human flesh. I give you: Compean-Bangaly-J-E-C, 24 I&N Dec. 710 (A.G. January 7, 2009).

Mass Appeal has obtained a fresh copy of Mukasey’s monster, and will now (with Mssrs. Justerini & Brooks assisting) perform an initial autopsy:

While it is always the Attorney General’s prerogative to step up and apply a firm thumb to the scales of justice at will, I am not aware of any other AG decision that has so broadly and comprehensively superceded and redefined an entire issue in immigration jurisprudence. With Wednesday’s ruling (hereinafter, Compean), Mukasey has unilaterally eliminated any possibility of a legal or Constitutional right to counsel in immigration proceedings and authoritatively replaced all attempts to construe such a right with a completely new set of rules.

First, some context:

There has never been a direct Constitutional right to counsel in immigration proceedings. Immigration removal (née “deportation”) cases are brought under civil charges, conveniently placing them outside the scope of the Sixth Amendment’s guarantee of assistance of counsel in criminal prosecutions.  Pro: The federal government is saved the significant expense of appointing attorneys to represent aliens facing deportation. Con: Immigration respondents—including refugees and others with potentially legitimate defenses to their deportation—must pay for their own lawyers, and are left with no recourse when incompetent attorneys snatch defeat from the jaws of victory.

No matter how unfortunate, this outcome is entirely inevitable given the stated intent of the Sixth Amendment to protect defendants in criminal prosecutions. But in Matter of Lozada, the Board of Immigration Appeals generously found that aliens in immigration court do have basic due process rights under the Fifth Amendment which extend to something approximating a right to counsel. Under Lozada, a due process violation amounting to what criminal lawyers would recognize as “ineffective assistance of counsel” (”IAC”) may be triggered if the attorney’s performance was so poor that it actually precluded the possibility of a fair hearing. Having found that this right existed, Lozada then outlined a series of steps which aliens must take (including, controversially, either filing a complaint with the attorney’s state bar organization or explaining why such a complaint had not been filed) prior to claiming IAC for purposes of reopening prior immigration proceedings.

In Compean’s opening reel, Mukasey effectively acknowledges what most of us had already recognized but didn’t really want to admit: Lozada was an awkward attempt to stick a Constitutional right to counsel in a place where that particular sun was never meant to shine. As Mukasey thoroughly demonstrates, the right to counsel has never been held to exist in any other kind of civil proceeding–other than civil commitment proceedings, at which a cognizable liberty interest is at stake–and this right has no place in Immigrationland. (While I recognize that indefinite separation from one’s friends, family, and adopted homeland may not strictly constitute a “life, liberty or property” interest covered by the Fifth, I think that we can all agree that it sucks.)

Compean’s second half is where Mukasey reminds us that he is still—if only for thirteen days or so—the reigning demigod of Immigrationland, and that he may reshape its terrain at will. Having already elegantly excised all legal and Constitutional concerns from the discussion, the AG proceeds to install an entirely new set of obstacles for would-be IAC claimants.

Where Lozada established three preliminary requirements for an IAC claim, Compean has five (and change), none of which I really care to get into now. Where Lozada had Constitutional underpinnings, Compean is a sui generis act of executive fiat. Where Lozada was based upon fundamental considerations of justice, the new Compean regime is a cynical bait-and-switch framed as an act of manifest generosity. As you might expect, there are some people who are unhappy about this.

Although Lozada will remain the law for all proceedings initiated prior to January 7, future non-citizens finding themselves in removal proceedings should now be advised to choose their attorneys very carefully. Immigrationland is already a weird and dangerous place that should not be entered without a competent guide, but Mr. Mukasey has now seen to it that you’ve really got no one to blame but yourself if you’re left drowning in quicksand.

In an interesting footnote (although, really, is there any other kind?), Mukasey specifically states that this opinion is not meant to apply to “notarios,” “legal advisors,” and the legion of other mouth-breathing crooks and shysters who have been the bane of the immigration bar for as long as it has existed. This was an open question under Lozada, and Mukasey has not provided the answer I would have wanted. While Compean has already precluded all but the most desperate non-citizens from raising IAC claims, this footnote specifically slams the door for those who may most need this relief: non-citizens swindled by non-attorneys.

Oh, and one more thing that hit me on first read: Compean’s final requirement that the attorney filing a motion to reopen based upon an IAC claim must certify in a sworn statement that (basically) prior counsel totally sucked. Lozada already reminded us that we all live in glass houses, but this… Ouch.

I can’t really write much more about this right now. While I’m disappointed with the spirit, tone, and outcome of this decision, it’s the timing that really gets me. (Gotta wonder: How many more consequential decisions must be spewing from every corner of Bushworld this week?) Michael Mukasey was Attorney General for just a little more than a full year, and he will be out of a job very, very soon. Along with his infamous (although technically correct) pronouncement that “not every wrong… or violation of the law is a crime,” this forceful ruling may well stand as his most memorable legacy from his short time as our nation’s leading lawyer. But, hey: at least he can leave with the honest knowledge that he wasn’t Fredo!

Matt Cameron