Improving Access to Counsel for Immigrants

Via Immigration Impact:

The Department of Justice now has an opportunity to develop a new framework that meaningfully protects the right to counsel. Soon after coming into office, Attorney General Holder vacated a decision issued by former Attorney General Mukasey that would have made it more difficult for immigrants to obtain a remedy when their lawyer was incompetent. Attorney General Holder directed the Executive Office for Immigration Review (EOIR)—the agency within the Department of Justice that houses the immigration courts and the Board of Immigration Appeals—to initiate rulemaking procedures to evaluate and possibly modify the current framework for evaluating ineffective assistance of counsel claims.

This month, the American Immigration Council (formerly the American Immigration Law Foundation) and the American Immigration Lawyers Association sent a letter to EOIR recommending steps the agency can take to better protect victims of ineffective assistance of counsel and help ensure that all immigrants in removal proceedings are afforded a fair hearing. The letter recommends that EOIR’s new framework strive to achieve the following:

• Ensure that all noncitizens in removal proceeding have a fair opportunity to be heard

• Promote quality representation and ensure that the immigration bar meets ethical and professional standards

• Reduce the need for litigation and promote judicial efficiency.

Language and cultural barriers and lack of knowledge about the immigration system mean that immigrants must have access to competent counsel. However, these realities also mean that immigrants are susceptible to fraudulent practices. Victims of ineffective assistance of counsel may not immediately realize that their lawyer did something wrong, and they may not be equipped to bring appropriate claims to the immigration agencies. EOIR’s new framework must reflect these realities and the challenges that immigrants in removal proceedings face.