Cite as 25 I&N Dec. 1 (A.G. 2009) Interim Decision #3643
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Matter of Enrique Salas COMPEAN, Respondent
File A078 566 977 – Houston, Texas
Matter of Sylla BANGALY, Respondent
File A078 555 848 – Houston, Texas
Matter of J-E-C-, et al., Respondents
Decided by Attorney General June 3, 2009
U.S. Department of Justice
Office of the Attorney General
The Attorney General vacated the decision in Matter of Compean, Bangaly & J-E-C-,
24 I&N Dec. 710 (A.G. 2009), and pending the outcome of a rulemaking process, directed
the Board of Immigration Appeals and the Immigration Judges to continue to apply the
previously established standards for reviewing motions to reopen based on claims of
ineffective assistance of counsel.
FOR RESPONDENT COMPEAN: Cyril Chuckwurah, Esquire, Houston, Texas
FOR RESPONDENT BANGALY: Isuf Kola, Esquire, Glen Ellyn, Illinois
FOR RESPONDENT J-E-C-, et al.: Robert J. Jacobs, Esquire, Gainesville, Florida
AMICI CURIAE: American Immigration Law Foundation, and other organizations
FOR THE DEPARTMENT OF HOMELAND SECURITY: David A. Martin, Acting
General Counsel; David A. Landau, Chief Appellate Counsel
BEFORE THE ATTORNEY GENERAL
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 (A.G. 2009)
(“Compean”). 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 showCite as 25 I&N Dec. 1 (A.G. 2009) Interim Decision #3643
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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 15 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). Nonetheless, Compean both rejected
Lozada’s constitutional reasoning and 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, despite the limited discussion of the Lozada framework in the briefs
submitted in Compean by the parties and amici curiae. Compean further
provided that this new administrative framework should apply “henceforth,”
even though the decision acknowledged it might conflict with the
Lozada-based approach taken by a number of Federal Courts of Appeals. See
Compean, 24 I&N Dec. at 730 & n.8.
For the reasons stated herein, I have determined that it is appropriate to
reconsider the January 7, 2009 decision.
Establishing an appropriate framework for reviewing motions to reopen
immigration proceedings based on claims of ineffective assistance of counsel
is a matter of great importance. I do not believe that the process used in
Compean resulted in a thorough consideration of the issues involved,
particularly for a decision that implemented a new, complex framework in
place of a well-established and longstanding practice that had been
reaffirmed by the Board in 2003 after careful consideration. The preferable
administrative process for reforming the Lozada framework 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.
Accordingly, I direct 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 what modifications should
be proposed for public consideration. After soliciting information and public
comment, through publication of a proposed rule in the Federal Register, from
all interested persons on a revised framework for reviewing claims of
ineffective assistance of counsel in immigration proceedings, the Department
of Justice may, if appropriate, proceed with the publication of a final rule.
In Compean, the introduction of a new procedural framework depended in
part on Attorney General Mukasey’s conclusion that there is no constitutional
right to effective assistance of counsel in removal proceedings. Because that
conclusion is not necessary either to decide these cases under pre-Compean
standards or to initiate a rulemaking process, this Order vacates Compean inCite as 25 I&N Dec. 1 (A.G. 2009) Interim Decision #3643
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its entirety. To ensure that there is an established framework in place pending
the issuance of a final rule, the Board and Immigration Judges should apply the
pre-Compean standards to all pending and future motions to reopen based
upon ineffective assistance of counsel, regardless of when such motions were
filed. The litigating positions of the Department of Justice will remain
unaffected by this Order. Finally, prior to Compean, the Board itself had not
resolved whether its discretion to reopen removal proceedings includes the
power to consider claims of ineffective assistance of counsel based on conduct
of counsel that occurred after a final order of removal had been entered. Given
the absence of a pre-Compean standard of the Board to apply pending issuance
of a final rule, I resolve the question in the interim by concluding that the
Board does have this discretion, and I leave it to the Board to determine the
scope of such discretion.
Turning to the merits of the particular cases at issue, I find that, for the
reasons stated by the Board, its orders denying reopening of the three matters
reviewed in Compean were appropriate under the Lozada framework and
standards as established by the Board before Compean. On that basis, I concur
with Attorney General Mukasey’s decision to affirm the Board’s decisions
denying reopening of these matters. Compean, 24 I&N Dec. at 743.