You act as a staff attorney at an advocacy organization concerned about the lack of counsel representing non-citizens in adversarial removal proceedings before immigration judges—about half of these non-citizens have appeared pro se in recent years. Section 292 of the Immigration and Nationality Act provides: “In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” The senior attorney responsible for access to representation at your organization asks you to draft a short legal memo analyzing the following issue: when, if ever, is fundamental fairness implicated such that a non-citizen would be constitutionally entitled to counsel at government expense in such removal proceedings?
Problem 2 :
You are Legislative Counsel for a House member who asks your guidance on the central Republican immigration reform principle announced by Speaker Boehner earlier this year that there will be “no special path to citizenship for individuals who broke our nation’s immigration laws.” In particular, the member wants an analysis of the pros and cons of this principle, as well as a recommendation to support or oppose it that flows logically from your analysis.
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In one of his last acts as Attorney General, Michael Mukasey issued In re Compean (“Compean I”) ,in which he determined that noncitizens in immigration removal proceedings do not have a statutory or constitutional right to effective representation . The decision departed from the majority position among the circuit courts that noncitizens possess a due-process right to effective assistance of counsel, and effectively replaced a “familiar and workable” procedural framework for reopening removal proceedings based on claims of ineffective assistance of counsel with a new standard: “inadequate and unreasonable procedure[s]” apparently intended to “minimize judicial protection for immigrants.” On June 3, 2009, Attorney General Eric Holder vacated Compean I, expressing his concern that the manner in which Mukasey issued the decision did not result “in a thorough consideration of the issues involved.”
Many in the immigration-law community have welcomed Holder’s order to vacate Compean I. Nevertheless, it is improper to overstate the positive scope or effect of Holder’s actions. Although the Attorney General instructed Immigration Judges (“IJs”) and the Board of Immigration Appeals (“BIA”) to apply the pre-Compean I framework to reopen all pending and future motions based on ineffective assistance of counsel, he did not address any of Mukasey’s substantive constitutional arguments. Consequently, Holder failed to clearly articulate the position of the DOJ on this important and controversial issue....