Assistance of Counsel in Removal Proceedings ( II ) The Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710 (Att’y Gen. 2009); Assistance of Counsel in Removal Proceedings ( I ), 33 Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.), is vacated. The Acting Director of the Executive Office for Immigration Review shall initiate rulemaking procedures as soon as practicable to evaluate the pre-Compean framework for reviewing claims of ineffective assistance of counsel in deportation proceedings and to determine what modifications should be proposed for public consideration. Pending the issuance of a final rule, the Board of Immigration Appeals and Immigration Judges should apply the pre-Compean standards to all pending and future motions to reopen removal proceedings based upon ineffective assistance of counsel. June 3, 2009 OPINION IN REMOVAL PROCEEDINGS MATTER OF ENRIQUE SALAS COMPEAN, RESPONDENT MATTER OF SYLLA BANGALY, RESPONDENT MATTER OF J-E-C-, ET AL., RESPONDENTS On January 7, 2009, Attorney General Mukasey overruled in part the decisions of the Board of Immigration Appeals (“Board”) in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and Matter of Assaad, 23 I. & N. Dec. 553 (BIA 2003), and affirmed the Board’s orders denying reopening in Matter of Compean, A078 566 977 (BIA May 20, 2008), Matter of Bangaly, A078 555 848 (BIA Mar. 7, 2008), and Matter of J-E-C- (BIA Apr. 8, 2008). See Matter of Compean, Bangaly & J-E-C-, 24 I. & N. Dec. 710 (Att’y Gen. 2009) (“Compean”); Assistance of Counsel in Re- moval Proceedings ( I ), 33 Op. O.L.C. 1 (2009) (Mukasey, Att’y Gen.). In Lozada, the Board established the procedural requirements for filing a motion to reopen deportation (now removal) proceedings based upon a claim of ineffective assistance of counsel and required the alien to show that he was prejudiced by the action or inaction of his counsel. Lozada, 19 I. & N. Dec. at 639–40. The Compean decision acknowledged that the Lozada framework had “largely stood the test of time,” having been expressly reaffirmed by the Board fifteen years after its initial adoption. Compean, 24 I. & N. Dec. at 731; see also Assaad, 23 I. & N. Dec. at 556– 57 (affirming the application of Lozada to removal proceedings). None- theless, Compean both rejected Lozada’s constitutional reasoning and 57 33 Op. O.L.C. 57 (2009) (Holder, Att’y Gen.) ordered the Board not to rely upon the Lozada framework, even as a discretionary matter. Instead, Compean set forth, as an exercise of the Attorney General’s administrative discretion, a new substantive and procedural framework for reviewing all such claims and a formulation of the prejudice showing different from that followed by many courts, de- spite the limited discussion of the Lozada framework in the briefs submit- ted in Compean by the parties and amici curiae. Compean further provid- ed that this new administrative framework should apply “henceforth,” even though the decision acknowledged it might conflict with the Loza- da-based approach taken by a number of federal courts ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals