INSTRUMENTS OF DUE PROCESS: SPECIAL CIRCUMSTANCES OF INEFFECTIVE ASSISTANCE OF RETAINED COUNSEL IN REMOVAL PROCEEDINGS *† Stephen S. Kim INTRODUCTION Given the “disturbing frequency” of ineffective representation by attorneys retained by immigrants seeking legal status in this country, Second Circuit Court of Appeals Judge Robert Katzmann, in a sharply critical opinion, reiterated that while noncitizens have no Sixth Amendment right to the assistance of counsel, due process concerns may arise when an attorney provides representation so egregious that it impinges upon the fundamental fairness of an immigration hearing.1 Not everyone agrees with Judge Katzmann’s assessment. Currently, the circuit courts are squarely divided over whether ineffective representation by a retained attorney under certain narrow sets of circumstances can violate the Fifth Amendment Due Process Clause.2 Seven federal courts of appeals have recognized that a noncitizen’s claim of ineffective assistance in civil removal proceedings may implicate due process concerns under the Fifth Amendment.3 However, the Fourth and * Ballenger–Green Memorial Paper Winner. The Vermont Law Review established the Ballenger–Green Memorial Paper in 2001 to commemorate the lives of Vermont Law School students Chandra Ballenger ’02 and Orlando Green ’01. The Ballenger–Green Memorial Paper is an opportunity for any student to address issues of human diversity through legal scholarship. Each year a paper is selected from open submissions that most reflects the commitment to excellence Orlando and Chandra demonstrated in their burgeoning legal careers. The Vermont Law Review is pleased to present the 2009 Ballenger–Green Memorial Paper. † Thank you to Jill Pfenning, Art Edersheim, and Jackie Gardina for providing insightful comments to earlier drafts of this Article. 1. Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008); see infra Part I.A for a summary of the case. This Article uses the term “noncitizen” instead of “alien” because of the negative connotations linked to “alien.” Accord Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 CONN. L. REV. 1411, 1411 n.1 (1997) (both noting that “noncitizen” is a less prejudicial term); Jill M. Pfenning, Inadequate and Ineffective: Congress Suspends the Writ of Habeas Corpus for Noncitizens Challenging Removal Orders by Failing to Provide a Way to Introduce New Evidence, 31 VT. L. REV. 735, 735 n.1 (2007). 2. Rafiyev v. Mukasey, 536 F.3d 853, 860–61 (8th Cir. 2008) (recognizing the circuit court split and taking the minority position that there is no constitutional right to effective assistance of counsel under the Fifth Amendment). 3. See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003); Jian Jun Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); Gbaya v. U.S. Attorney Gen., 342 F.3d 1219, 1221 (11th Cir. 2003) (per curiam); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d Cir. 1992); Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986) (all holding that ineffective assistance in removal proceedings 174 Vermont Law Review [Vol. 34:173 Eighth Circuits recently declined to follow their sister circuits and categorically ruled that there is no constitutional right to effective assistance of counsel under the Fifth Amendment in removal proceedings.4 Both circuits explained that because removal proceedings are civil and not criminal proceedings, noncitizens facing removal from this country are not entitled to the Sixth Amendment’s right to counsel, nor to the corresponding right to effective assistance of counsel.5 The circuits concluded that without a constitutional right to counsel noncitizens do not have a right to effective assistance of counsel under Coleman v. Thompson6 and other Supreme Court precedent.7 Therefore, any mistake made by an attorney retained by an immigrant would be imputed to the client, just as in any other civil proceeding, leaving the noncitizen with a malpractice action.8 The Fourth Circuit has further explained that because the actions of a noncitizen’s privately retained lawyer in a removal proceeding are not state action, there can be no due process violation under the Fifth Amendment.9 The Fourth and Eighth Circuits’ categorical rule forecloses any remedy under the Fifth Amendment Due Process Clause even in the most egregious circumstances where retained counsel’s representation renders a removal hearing fundamentally unfair.10 This minority view recently gained further may rise to a due process violation if the proceeding was so fundamentally unfair that the noncitizen was prevented from reasonably presenting his or her case). But see Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008) (holding that “there is no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding”). This Article uses the term “removal” interchangeably with “deportation.” However, it should be noted that after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (1996) (codified as amended in various titles of U.S.C.), the federal immigration laws use the term “removal” to refer to decisions made by the government to expel a noncitizen from the United States. 4. Rafiyev, 536 F.3d at 861; Afanwi v. Mukasey, 526 F.3d 788, 798 (4th Cir. 2008) (ruling “that retained counsel’s ineffectiveness in a removal proceeding cannot deprive [a noncitizen] of his Fifth Amendment right to a fundamentally fair hearing”), petition for cert. filed, 2009 WL 157096 (U.S. Jan. 16, 2009) (No. 08-906), vacated and remanded, 2009 WL 3161844 (U.S. Oct 05, 2009) (No. 08-906). 5. Rafiyev, 536 F.3d at 861; Afanwi, 526 F.3d at 796. 6. Coleman v. Thompson, 501 U.S. 722 (1991). 7. Rafiyev, 536 F.3d at 861; see Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001) (observing that the cases that have assumed there is a right to effective assistance of counsel in deportation proceedings have not considered the bearing of Murray v. Giarratano, 492 U.S. 1 (1989), or Pennsylvania v. Finley, 481 U.S. 551 (1987)). 8. See Rafiyev, 536 F.3d at 861 (“To the extent Rafiyev’s counsel was ineffective, the federal government was not accountable for her substandard performance; it is imputed to the client.”). 9. Afanwi, 526 F.3d at 798–99. 10. The minority view would leave open the possibility that immigrants facing deportation may be without any recourse for even the most egregious acts of attorney incompetence or fraud. If the decision to allow ineffective assistance claims in removal cases is rooted in the Board of Immigration Appeals’s (BIA) discretion, the baseline constitutional floor would be swept away from noncitizens facing removal. This means that for whatever reason, mistake or not, a noncitizen could be deported for her attorney’s deficiency even when, but for her attorney’s mistake, she would have secured legal status 2009] Instruments of Due Process 175 support when outgoing Attorney General Michael Mukasey, in In re Compean, overturned a decades-old precedent that recognized the Due Process Clause as a basis for a noncitizen’s ineffective assistance claim.11 However, the new Attorney General, Eric Holder, vacated the order issued in Compean and announced his intention to initiate rulemaking proceedings for regulations to govern ineffective assistance claims in removal proceedings.12 The Supreme Court also granted a petition for a writ of certiorari involving the exact issue but recently remanded the case to the Fourth Circuit in light of Attorney General Holder’s decision.13 The recent activity suggests that the issue of whether there is ever a due process right to effective counsel in removal proceedings is “ripe for reconsideration.”14 This Article provides historical and legal support for the majority of federal circuit courts that have found a basis for ineffective assistance claims in the Fifth Amendment Due Process Clause. These courts have not directly reconciled the due process underpinnings of ineffective claims with Supreme Court precedent, and little has been written on the subject to fully explain the apparent conflict.15 This Article provides justification for the in this country. Without any procedural protections guaranteed by the Constitution, except the BIA’s administrative grace, there is a serious risk that many immigrants with legitimate claims would be erroneously deported, persecuted, or tortured. This Article, to the contrary, argues that due process requires removal proceedings to be fundamentally fair and that fairness includes some recourse for special circumstances when an attorney wholly fails to perform his or her most basic legal duties. 11. In re Compean, 24 I. & N. Dec. 710 (A.G. 2009), vacated, In re Compean, 25 I. & N. Dec. 1 (A.G. 2009). 12. See In re Compean, 25 I. & N. Dec. 1, 2 (A.G. 2009) (observing that the process used in the initial review of Compean was not “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”). 13. Afanwi, 526 F.3d 788. 14. Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001). 15. One Note has argued that the right to effective assistance of counsel in the immigration context is correctly rooted in the Due Process Clause and not agency discretion. See Note, A Second Chance: The Right to Effective Assistance of Counsel in Immigration Removal Proceedings, 120 HARV. L. REV. 1544, 1556 (2007) [hereinafter Second Chance] (explaining how federal circuit courts since the mid-1970s developed a due process remedy for ineffective assistance claims in the deportation context with no reference to agency discretion for many years).