At the time that I wrote that, George W. Bush was still (technically, but not that anyone really noticed) President of the United States. Now that the Change-o-Meter has been set a-whirrin’, however, it looks like there is a real chance that Compean may be hitting the shredder shortly.

AILA has recently published incoming Attorney General Eric Holder’s responses to a number of written questions from Senator Orrin Hatch submitted in advance of his confirmation last week. When asked directly for his thoughts on Compean, Holder responded:

The Constitution guarantees due process of law to those who are the subjects of deportation proceeding. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General.

]]> http://www.mattcameronlaw.com/2009/02/holder-to-compost-compean/feed/ 0 http://www.mattcameronlaw.com/2009/01/closing-time-at-bush-doj-mukasey-drunkenly-gropes-for-car-keys-constitution/ http://www.mattcameronlaw.com/2009/01/closing-time-at-bush-doj-mukasey-drunkenly-gropes-for-car-keys-constitution/#comments Sat, 10 Jan 2009 23:58:28 +0000 Matt Cameron http://yourmassappeal.wordpress.com/?p=144 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!

“It is not the business of the courts to tell Congress what to do about public policy choices, but we are entitled to warn when the machinery that we help administer is breaking down.   The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct.   The regime is badly in need of an overhaul.”

Kim v. Gonzales, 468 F.3d 58 (1st. Cir. 2006)(emphasis added).

The First Circuit’s evident disenchantment with immigration appeals (may I offer you the paltry near-beer of a fresh half-pint of Justice Lite?) is understandable, especially given the explosion of BIA appeals they’ve had to endure since the passage of the 2002 reforms ostensibly designed to “streamline” the immigration appellate process. (I’m not up for putting together recent numbers tonight, but try here for a comprehensive look at the growing phenomenon as it stood a couple of years ago.) So this we-can’t-tell-you-to-do-something-about-this-but-please-seriously-guys-just-DO-SOMETHING kinda sentiment had to come out sometime.

To be fair, there’s no doubt what it was about this argument that had the First reaching for their revolvers:

“Kim’s first claim–that no crime of violence occurred even though Kim approached the victim with a cocked gun and shot him in the head as the victim fled–might seem frivolous to one not acquainted with immigration law…” (emphasis added)

Couldn’t have snarked it better myself. That last phrase tells you pretty much everything you need to know about what the First Circuit thinks about the current state of the Immigration and Nationality Act, the Executive Office of Immigration Review, the Board of Immigration Appeals, and the immigration bar at large.

But, more importantly, you read that argument correctly: The petitioner claimed that manslaughter should not constitute a “crime of violence” that should be classified as an “aggravated felony” for immigration purposes.

Again: Shooting a man in the back of the head did not constitute a felony in which there was a “substantial risk that physical force may be used… in the course of its commission.”

One more once? Intentional gun violence does not equal a “crime of violence.” Try saying it out loud out a few more times. Pace around the room a little, if that helps. I’ll be here.

Thing is, I have no doubt that counsel stood up and argued this with a straight face and a clean conscience. As the First has to acknowledge, it’s a good argument.

If you think this is all some kind of stupid joke, let me assure you that it is not—and to be the first to welcome you to Immigrationland! Double Scotch?

Of course, we can all agree right here that it’s a crazy argument, or at least that it sounds like one.

See, now, if you came up to me on the street and asked “Hey, would you say that manslaughter is a crime of violence?” my reasoned response would likely be a grunted affirmative just before I politely requested that you step away from my car with that squeegee–because, really, sorry man, but I’m really just all out of change–and rolled up the window and locked all my doors.

Yes, it sounds crazy that anyone would even try to litigate this issue. Squeegee crazy. But the truly insane takeaway is that this is a perfectly acceptable argument that actually passes the laugh test–thanks to some eminently-fixable vagaries of  both the relevant Rhode Island statute and the controlling federal law which defines “crimes of violence”–and that it may very well work next time around if it is properly raised earlier in the proceedings.

(Full disclosure: I recently asked the First Circuit if they might maybe like to consider an appeal which raised a similar question which kind of sounds about 75% as ridiculous as this one when you say it out loud, but I still stand by my argument in that one and will be happy to discuss its merits further with anyone who really wants to know. Plus, it’s not like we were talking about, y’know, manslaughter.)