Is Your Client Prejudiced? Litigating Ineffective-Assistance-of-Counsel Claims in Immigration Matters Arising in the Eleventh Circuit

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University of Miami Law Review


The process of adjudicating asylum claims in the United States entails a graduated system of hearings. The first opportunity to present a case is before an asylum officer-a civil official-who conducts an interview with minimal participation by the applicant's attorney. If unsuccessful, the applicant renews the application defensively in removal proceedings before an immigration judge-an administrative official within the Department of Justice. The hearing is an adversarial setting where the attorney for the applicant advocates against an attorney from the Department of Homeland Security's Office of Chief Counsel. Counsel is generally necessary to present an effective case before the immigration court and on any appeal to the Board of Immigration Appeals. The U.S. system represents the necessary tension between the guiding principles of refugee law, known as nonrefoulement,2 and the rigorous examination by officers, judges, and counsel striving to ensure that the applicants satisfy requirements of credibility, corroboration, and a sufficient legal theory that mandates relief. It is axiomatic that an asylum applicant has no experience in navigating the complexities of this system. Consequently, the applicant is overmatched when litigating pro se against the trained counsel representing the United States. The immigration courts do not have the authority to designate pro bono counsel for noncitizen respondents in their administrative proceedings. The consequence is that the asylum seeking community is highly dependent on a private bar that varies in skill level, familiarity with the asylum process, and commitment to its clients. Immigration case law requires applicants to meet strict standards of proof in corroborating their claims. A central problem is whether counsel for these respondents has an equally high burden of effective advocacy or, at a minimum, a burden of informing the clients of their evidentiary obligations. This article will deal with the representation of clients in their claims of ineffective assistance of counsel and assess the role of the Board of Immigration Appeals and the U.S. courts of appeals in ensuring that immigrants are afforded a fair hearing in their removal proceedings. The Board of Immigration Appeals has a long-established, threepronged approach for raising a claim of ineffective assistance of counsel under Matter of Lozada, requiring the applicant to enter a sworn affidavit alleging counsel's responsibilities and their failure to fulfill these obligations, inform the counsel of the charge and permit them to respond, and report any ethical or professional violation to the relevant state bar disciplinary panel. In order to win a new hearing, the immigrant must also show that the defective performance of counsel negatively influenced the outcome of the case.4 The Eleventh Circuit has favorably viewed this requirement of demonstrating prejudice. Thus, before the Eleventh Circuit, pursuant to Dakane v. U.S. Attorney General, the applicant must show that the performance of counsel was so inadequate that there is a reasonable possibility that, but for the attorney's error, the outcome of the proceedings would be different.' Dakane itself involves an attorney that failed to file a required brief and thus deprived a Somali asylum applicant of his right to appeal. The Eleventh Circuit rejected the petition for review because the immigration judge had found Dakane's testimony not credible.6 The court reasoned that the attorney's failure on appeal did not prejudice Dakane, as his own testimony was his undoing.7 The court did not address the fact that with adequate performance of counsel, Dakane might have contested and possibly reversed the negative credibility finding; and that he was therefore likely subject to prejudice by his counsel's negligence. The court presently uses Dakane as the standard for reviewing cases alleging ineffective assistance of counsel. As of May 2008, Dakane has been cited almost 100 times by federal courts of appeals, with most of the citations coming from the Eleventh Circuit.8 The Eleventh Circuit has yet to find prejudice under the Dakane standard. Dakane was decided under the deferential "abuse of discretion" standard that federal courts apply in cases arising within an administrative agency's area of expertise.9 However, the Board of Immigration Appeals and the Department of Justice (the agency that is being questioned regarding its expertise), in issuing decisions in cases arising in the Eleventh Circuit, rely on Dakane to reject cases for failing to demonstrate the requirement of prejudice. The facts of these cases are often further complicated by multiple layers of ineffective assistance and the failure of counsel to preserve issues for appeal or to properly follow established precedent or procedure. This article will examine the seemingly disastrous results of cases like Dakane in processing the cases of asylum seekers and other immigrants facing deportation. It will further explore bar complaints and Lozada claims before the Department of Justice. The goal is to reveal whether Dakane is itself problematic or if it is simply indicative of failures of advocates in representing asylum seekers and presenting other defensive cases in removal proceedings.

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