Right to Effective Assistance of Counsel Restored

June 4, 2009
Since 1988, it has been accepted by immigration judges that individuals in removal proceedings (called "deportation" at that time) had the right to effective assistance of counsel.  The case that established this principle was Matter of Lozada, 19 I&N Dec. 637 (BIA, 1988). This precedent also allowed individuals who were prejudiced by the action or inactions of counsel to request that their cases be reopened or reconsidered.

In January 2009, then-Attorney General Mukasey in the latter days of the George W. Bush administration overruled (in part) this long-established precedent.  Mukasey intervened in a series of cases, denying the reopening of three individual cases.  This reversal of the right to effective assistance of counsel was accomplished under Matter of Compean, 24 I&N Dec. 710 (A.G., 2009).

On 3 June 2009, recognizing that Mukasey's decision did not result in a thorough consideration of rights and concerns involved, Attorney General Eric Holder re-established Matter of Lozada as good precedent, restoring a basic fairness accorded to individuals who are in immigration proceedings, and allowing reopening and reconsideration of cases where individuals have not had the benefit of effective counsel.  --jcf