Respondents Brief — Afanzi v. Holder, (2008) (No. 906)

Supteme Court, U.S.

FILED

AUG 26 2009

OFFICE OF THE ='"": §<

-—-a me +

No. 08-906

Hu the Supreme Court of the CAnited States

JOSEPH AFANWI, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATIORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD E, KEENER

ERICA B. MILES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Fifth Amendment affords an alien a

right to relief based on the ineffective assistance of pri-

vately retained counsel in the course of seeking judicial

review of a final order of removal entered by the Board

of Immigration Appeals.

2. Whether the Board of Immigration Appeals has

jurisdiction to reopen proceedings to afford relief from

his counsel’s failure to file a timely petition for review

with the court of appeals of the Board’s final order of

removal.

(1)

TABLE OF CONTENTS

Page

EE 55 occu eed n ens enceeeccyneeusesecegeepeds 1

En en ere ee ee ere i

ee ee err rr Tre rey Tree 2

iin xn 6g Ok BG 5 ROS TUEG ES CONS EEK CED AEE CONROE i)

6 ok oud GUWCOECAREVERME CAMO EA CREO AON KES 16

TABLE OF AUTHORITIES

Cases:

Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009)... 2.2... 14

Aris v. Mukasey, 517 F.3d 595 (2d Cir. 2008) .......... 13

Castaneda-Suarez v. INS, 993 F.2d 142

POTS Ee eC ee eT ye Ee eee TT 13

Coleman v. Thompson, 501 U.S. 722 (1991) ......... 10, 11

Compean, In re:

251. & N. Dec. 1 (Att’y Gen. 2009) ......... 6, 10, 14, 16

24 1. & N. Dec. 710 (Att’y Gen.), vacated,

251. & N. Dec. 1 (Att’y Gen. 2009)................ 6

Dakane v. United States Att’y Gen., 399 F.3d 1269

ee ce hed en banks 6 ue oh oO 8b wee 13

Denko v. INS, 351 F.3d 717 (6th Cir. 2003) ............ 13

Fadiga v. Attorney Gen., 488 F.3d 142 (3d Cir. 2007) .... 18

Fong Yue Ting v. United States, 149 U.S. 698 (1893) .... 12

Gjondrekaj v. Mukasey, 269 Fed. Appx. 106

a, Oe ae ae. cae a ue ene 16

INS vy. Lopez-Mendoza, 468 U.S. 1032 (1981) .......... 12

Kucana v. Holder, cert. granted, No. 08-911

SE Swe eek dk oye eek when euees nee see c ven 15

Link v. Wabash R.R., 370 U.S. 626 (1962) ............. 11

(111)

IV

Cases

Continued: Page

Lozada, In re, 19 1. & N. Dee. 637 (B.1.A. 1988),

review denied, 857 F.2d 10 (1st Cir. 1988) ............ 6

BE Set Cees SO Cs SED Ck. ccvcdveseccccens 12

Magala v. Gonzales, 434 F.3d 523 (7th Cir. 2005) 2... .. 12

Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006) .......... 13

Mojsilovic v. 1NS, 156 F.3d 743 (7th Cir. 1998)... 2.2... 13

Murray v. Carrier, 477 US. 478 (1986) 2.2... ee ee eee 11

Negqusie v. Holder, 1298S. Ct. 1159 (2009) .............. 12

Nehad v. Mukasey, 535 F.3d 962 (9th Cir. 2008) ........ 13

Rafiyev v. Mukasey, 536 F.3d 853 (8th Cir. 2008) ....... 13

Sanchez v. Keisler, 505 F.3d 641 (7th Cir. 2007) ........ 13

Tangy v. Ashcroft, 354 F.3d 1192 (10th Cir. 2003) ........ 13

Zeru Vv. Gonzales, 503 F.3d 59 (1st Cir. 2007) ........... 13

Constitution, convention, statutes and regulations:

St Es cw ek ce nen ee 608 ees 9,10, 12, 13

I ck ee Cone eewe 12, 13

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

adopted Dee. 10, 1984, 8. Treaty Doc. No. 20,

100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85........ 2

Foreign Affairs Relations Authorization Act,

KF iseal Years 1998 and 1999, Pub. L. No. 105-277,

Div. G, Subdiv. B, § 2242, 112 Stat. 2681-822

Pe EE bcc pee ct vevecdececaensesseenee 3

Immigration and Nationality Act,

8 U.S.C. 1151 et seq.:

Dee SRPOIUOED cc ecce ns sccccccncesccenes 2

Vv

Statutes and regulations—Continued:

8 U.S.C. 1158(b)CIMA) ........------

8 USC. 1IZ2iaXIXB) ............-.

8 U.S.C. 1229a(b)(4)(A) .............

8 U.S.C. 1231(b)(3)(A) .......-..----

8 U.S.C. 1252(a)(2)(B)ii) ... 2... ee

S UBL). TERA) oe cccceescises

DUI NED os vv ewe cenduceess

PE 5 cbc ekcceustcudeewnr

Be OP NE 6 oie ON Ve eAete esd cnneanenes

8 C.F.R.:

TEED vi ccc eceebeesvuneusen

ee ee ee

Section 1008.1(d)(SMili) ... cee eee

Sections 1208.16-1208.18 ..............

Section 1IZOB.1G(eNS) ....cccccccccccces

Jn the Supreme Court of the Cited States

No. 08-906

JOSEPH AFANWI, PETITIONER

vz.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-22a)

is reported at 526 F.3d 788. The decision of the Board

of Immigration Appeals denying petitioner’s motion to

reopen (Pet. App. 28a-25a) is unreported. Earlier deci-

sions of the Board of Immigration Appeals (Pet. App.

26a, 27a-29a) and the immigration judge (Pet. App. 30a-

71a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 19, 2008. A petition for rehearing was denied on

August 19, 2008 (Pet. App. la-2a). On October 27, 2008,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including Janu-

ary 16, 2009, and the petition was filed on that date.

(1)

2

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. The Immigration and Nationality Aet (INA) de-

fines a “refugee” as an alien who is unwilling or unable

to return to his or her country of origin “because of per-

secution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a partic-

ular social group, or political opinion.” 8 U.S.C.

1101(a)(42)(A). If the “Secretary of Homeland Security

or the Attorney General determines” that an alien is a

refugee, the Secretary or the Attorney General “may,”

in his or her discretion, “grant asylum” in the United

States. 8 U.S.C. 1158(b)(1)(A). In addition to the dis-

cretionary relief of asylum, mandatory withholding of an

alicn’s removal from the United States is available “if

the Attorney General decides that the alien’s life or free-

dom would be threatened in [the country of removal]

because of the alien’s race, religion, nationality, mem-

bership in a particular social group, or political opinion.”

8 U.S.C. 1231(b)(8)(A). An applicant bears the burden

of establishing that he or she is a refugee eligible for

asylum or that his or her life or freedom would be

threatened so as to warrant withholding of removal.

8 C.F. R. 208.13(a), 208.16(b).

A person who is present in the United States and

fears torture if removed to a particular country may

obtain protection under the Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT), adopted Dec. 10, 1984, S. Treaty

Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T-.S.

85. The CAT has been implemented through Depart-

ment of Justice regulations. See 8 C.F.R. 1208.16-

3

1208.18; see also Foreign Relations Authorization Act,

Fiscal Years 1998 and 1999, Pub. L. No. 105-277, Div. G,

Subdiv. B, § 2242, 112 Stat. 2681-822 (8 U.S.C. 1231

note). To obtain protection under the CAT, an alien

must demonstrate that it is more likely than not that he

or she would be tortured in the country of removal.

8 C.F.R. 1208.16(¢)(3).

2. a. Petitioner, a native and citizen of Cameroon,

entered the United States in July 2002 as a non-immi-

grant visitor with authorization to remain in the United

States until January 23, 2008. Pet. App. 4a, 3la. On

January 20, 2003, petitioner filed an application for asy-

lum, withholding of removal, and CAT protection with

the former Immigration and Naturalization Service

(INS). /d. at 4a. An asylum officer referred petitioner's

application to an immigration judge (1.J). /d. at 4a, 60a.

On March 11, 2003, the INS initiated removal proceed-

ings by filing a Notice to Appear, alleging that petitioner

was removable under 8 U.S.C. 1227(a)(1)(B) for remain-

ing in the United States longer than permitted. Pet.

App. 4a-5a, 3la.

b. On July 22, 2004, the IJ denied petitioner’s appli-

cation for asylum, withholding of removal, and CAT pro-

tection on account of petitioner’s lack of credibility. Pet.

App. 30a-7la. The IJ found that there were significant

discrepancies between petitioner's original and amended

affidavits and inconsistencies between petitioner’s ac-

count of mistreatment and his mother’s affidavit. /d. at

62a-63a. In addition, the IJ determined that petitioner’s

testimony was improbable and uncorroborated, and that

the corroborating evidence that petitioner did provide

was inconsistent, of little evidentiary value, and lacking

in detail. /d. at 64a-67a. The IJ thus found that peti-

tioner failed to prove that he had been arrested and

4

harmed, or that he had escaped from prison and was

wanted by governmental authorities in Cameroon. /d.

at 68a. The IJ also found that petitioner’s claims of

country-wide persecution in Cameroon were not reason-

able. Jd. at 69a. Accordingly, the IJ denied petitioner’s

asylum-related claims and, for similar reasons, his

claims for withholding of removal under the INA and

the CAT. /d. at 67a-71a.

3. a. Petitioner appealed the I.J’s decision to the

Board of Immigration Appeals (Board). See Pet. App.

27a. Petitioner’s counsel, Daniel M. Fisher-Owens, later

filed a notice of appearance with the Board, listing his

address as follows:

Berliner Corcoran & Rowe, L.L.P.

1101 17th St. NW, Suite 1100

Washington, DC 20036

Admin. R. 143 (A.R.). Thereafter, the Board issued a

briefing schedule and mailed it to the following address:

Daniel M. Fisher-Owens

1101 17th Street NW

Suite 1100

Washington, DC 20036-0000

A.R. 141-142. On June 23, 2005, petitioner filed his brief

with the Board, including a copy of the briefing sched-

ule. A.R. 115-117.

b. On November 29, 2005, the Board dismissed peti-

tioner’s appeal. Pet. App. 27a-29a. The Board con-

cluded that the IJ did not err “in her conclusion that

[petitioner had] not presented sufficient evidence or

sufficiently credible testimony in support of the claim.”

Id. at 29a. The Board served its decision on petitioner’s

counsel at the same address it had used to serve the

briefing schedule. /d. at 5a, 10a nn.14 & 15. Petitioner

5

did not file a timely petition for judicial review of the

Board’s November 29, 2005 decision. /d. at 5a.

¢. On January 12, 2006, petitioner filed a motion

with the Board requesting that it reissue its November

29, 2005 decision. A.R. 89; Pet. App. 5a. In his motion,

petitioner observed that the Board’s decision had been

mailed to his attorney, but that the address omitted his

attorney's law firm’s name. /d. at 5a, 10a & n.14. Peti-

tioner argued that the incomplete address “could have

delayed delivery” of the Board’s decision, id. at 5a, but

he noted he could not confirm that fact, because counsel

had transferred offices and did not routinely check his

mail between the time the order was mailed and January

6, 2006. A.R. 91; see Pet. App. 9a-10a. Petitioner ar-

gued that it would “be unfair to penalize [him] for coun-

sel’s failing,” and requested that the Board use its “dis-

cretionary and equitable powers to rescind and reissue”

its prior decision. A.R. 93; see Pet. App. 10a-11a.

On February 13, 2006, the Board denied petitioner’s

motion to reissue its November 29, 2005 decision be-

cause the decision had been mailed to the address previ-

ously provided by counsel and there was no error attrib-

utable to the Board in serving the decision. Pet. App.

26a.

d. On February 27, 2006, petitioner—acting through

new counsel—filed a motion to reopen with the Board,

claiming that he received ineffective assistance of coun-

sel due to his prior attorney’s failure to file a timely peti-

tion for review of the Board’s November 29, 2005 deci-

sion, and also arguing that new evidence relating to his

asylum claim warranted reopening of his proceedings.

A.R. 6; Pet. App. 5a, 23a.

The Board denied petitioner’s motion to reopen on

May 12, 2006. Pet. App. 23a-25a. With respect to peti-

6

tioner’s claim of ineffective assistance of counsel, the

Board found that it lacked jurisdiction over a claim

based on “any ineffective assistance the [alien] received

subsequent to the final order of the Board and in con-

nection with an appeal of the Board’s decision.” Jd. at

24a. The Board observed that petitioner had attempted

to comply with the procedural requirements under /n re

Lozada, 19 1. & N. Dec. 637 (B.1.A.), review denied, 857

F.2d 10 (ist Cir. 1988), but found that it could review

due process claims only as they pertained to “proceed-

ings before the Immigration Judge or the Board” itself.'

Pet. App. 24a. With respect to petitioner’s request to

reopen the proceeding on the basis of new evidence, the

' In Lozada, the Board held that an alien’s motion to reopen based

on the alleged ineffective assistance of counsel should be evaluated in

light of the following three requirements: (1) the motion should be

“supported by an affidavit” from the alien setting forth, among other

things, “the agreement that was entered into with former counsel with

respect to the actions to be taken * * * and what counsel did or did

notrepresent to the [alien] in this regard”; (2) the “former counsel must

be informed of the allegations [leveled against him] and allowed the op-

portunity to respond”; and (3) the motion should reflect “whether a

complaint has been filed with appropriate disciplinary authorities” with

respect to any violation of counsel's “ethical or legal responsibilities” or

an explanation for why one was not filed. See /n re Lozada, 191. & N.

Dec. at 639. The Lozadu factors would have been partially superseded

on a prospective basis by Attorney General Mukasey’s initial decision

earlier this year in Jn re Compean, 24 1. & N. Dee. 710, 741-742 (2009)

(prescribing new filing requirements with respect to alien's motions ad-

dressing counsel's deficient performance, but providing that the Lozada

factors would continue to apply to motions filed before the Attorney

General's decision). On reconsideration, however, Attorney General

Mukasey’s opinion in Compean was vacated, and in a new opinion At-

torney General Holder ordered the initiation of a Department of Justice

rulemaking to evaluate whether the Lozada administrative framework

for considering claims based on allegedly deficient performance by

counsel should be revised. Jn re Compean, 25 1. & N. Dec. 1, 3 (2009).

7

Board found that, although the evidence was new and

previously unavailable, it failed to remedy “the short-

comings of [petitioner’s] claim, such as his lack of credi-

bility, and further failled] to establish that he is prima

facie eligible for relief.” /bid. Accordingly, the Board

denied petitioner’s motion Lo reopen. Jd. at 25a.

4. On February 27, 2006, petitioner filed a petition

for review in the court of appeals, seeking review of the

Board’s November 29, 2005 denial of his applications for

asylum, withholding of removal, and CAT protection.

Pet. App. 6a. He later filed a “corrected” petition for

review, also secking review of the Board’s February 13,

2006 denial of his motion to rescind and reissue. /bid.

He further amended his petition for review on June 8,

2006, to request review of the third Board decision (de-

nying his motion to reopen). /bid. The court of appeals

denied the petition for review of all three Board deci-

sions on May 19, 2008. /d. at 3a-22a.

a. With respect to the Board’s November 29, 2005

denial of petitioner’s applications for asylum, withhold-

ing of removal, and CAT protection, the court of appeals

held that it lacked jurisdiction because the petition for

judicial review had not been filed within the 30-day pe-

riod allowed by 8 U.S.C. 1252(b)(1). Pet. App. 9a-10a.

b. The court also denied the petition for review re-

garding petitioner’s motion to rescind and reissue the

Board’s November 29, 2005 decision, concluding that

“the decision to rescind and reissue an order of removal

is properly left to the discretion of the [Board].” Pet.

App. lla. The court deferred to the Board’s decision to

deny the motion, because petitioner had not established

that the Board was at fault for his failure to receive in a

timely way the decision denying his asylum-related

claims. /bid.

ra

ec. Turning to the Board’s denial of petitioner’s mo-

tion to reopen, the court of appeals affirmed the Board’s

decision on al] grounds. Pet. App. lla-2la. First, the

court concluded that, because “the new evidence” peti-

tioner presented in support of reopening did not “create

a well-founded fear of persecution,” the Board did not

abuse its discretion in denying the motion on the basis

of new evidence. /d. at 12a.

Next, the court affirmed the Board’s determination

that it lacked jurisdiction over petitioner's claim that he

received ineffective assistance of counsel as a result of

counsel’s failure to file a petition for review within the

30-day period allowed by 8 U.S.C. 1252(b)(1). Pet. App.

13a-15a. The court recognized that there is “no settled

or uniform view,” and that the Board itself had “issued

contradictory opinions on the subject.” /d. at 18a. But

the court determined that the Board lacked jurisdiction

under the governing regulations “over an ineffective

assistance claim arising out of an alien’s counsel’s failure

to file a timely petition for review with the court of

appeals,” 7d. at 14a, because such an action occurs “be-

fore |the] court, not before the Board,” id. at 15a, and

the Board’s jurisdiction is limited by regulation to a re-

view of questions or issues “in appeals from decisions

of immigration judges.” /d. at 14a (quoting 8 C.F.R.

1003.1(d)(3)Gi)).

Finally, the court of appeals addressed petilioner’s

claim of ineffective assistance of counsel based on coun-

sel’s failure to file a timely petition for review. Pet. App.

15a-21la. The court concluded that the Constitution does

not “guarantee[| effective assistance of counsel to an

alien in removal proceedings.” /d. at 15a-16a. The court

reasoned that while aliens have a statutory privilege

under 8 U.S.C. 1362 to retained counsel in administra-

9

tive removal proceedings, and enjoy a Fifth Amendment

right to due process in those proceedings, the Fifth

Amendment does not entitle aliens to a remedy for the

ineffectiveness of their retained counsel, because due

process is violated only by wrongful actions of the fed-

eral government or an individual engaging in “state ac-

tion.” Pet. App. 16a-19a. The court held that, because

petitioner’s counsel was a private actor and his alleged

ineffectiveness was a purely private act, petitioner had

not been deprived of his Fifth Amendment rights. /d. at

20a-2la. The court therefore dismissed the petition for

review “with respect to |petitioner’s] claim of ineffective

assistance of counsel.” /d. at 21a.

DISCUSSION

Petitioner renews his claim (Pet. 17-28) that he has

a constitutional entitlement to relief based on the as-

sertedly deficient performance of his privately retained

counsel in failing to file a timely petition for judicial re-

view of a final order of removal. Petitioner also renews

his claim (Pet. 28-29) that the Board had jurisdiction to

grant relief based on his counsel’s failure—after the

Board had already issued a final order of removal—to

file a timely petition for review with the court of appeals.

The court of appeals correctly held that there is no con-

stitutional right to effective performance by privately

retained counsel in removal proceedings, including on

judicial review. But the court erroneously affirmed the

Board’s conclusion that the Board lacks the power to

reopen removal proceedings in order to remedy an attor-

ney’s failure to file a timely petition for review of a final

order of removal. The Attorney General has since made

clear that the Board does have that authority. See /7 re

Compean, 25 1. & N. Dec. 1, 3 (2009). Accordingly, the

10

court of appeals’ judgment should be vacated and the

case remanded for further consideration in light of the

Attorney General’s decision in Compean that the Board

has jurisdiction to provide petitioner with appropriate

relief. The court of appeals may then in turn remand to

allow the Board to decide in the first instance whether

petitioner should be afforded an administrative remedy

for the ineffective assistance of counsel he alleges. Be-

cause that course could render the constitutional issue

moot, and because the case law in the courts of appeals

on the constitutional question is still developing, this

Court’s review of the constitutional question is unwar-

ranted.

1. Petitioner contends (Pet. 17-28) that his privately

retained lawyer’s failure to file atimely petition for re-

view of his order of removal deprived him of due process

in violation of the Fifth Amendment. Further review of

that claim on the merits is unwarranted, but this case

should be remanded for an opportunity to permit the

Board to consider whether, in light of the ineffective

assistance of counsel petitioner alleges, the Board

should exercise its discretion to grant petitioner’s mo-

tion to reopen.

a. The court of appeals correctly held that the Fifth

Amendment does not confer a right to effective assis-

tance by privately retained counsel in immigration pro-

ceedings. As this Court has explained, when the govern-

ment is not constitutionally required to furnish counsel

in the relevant proceedings, the errors of privately re-

tained counsel are not imputed to the government. See

Coleman v. Thompson, 501 U.S. 722, 752-754 (1991).

When “|t]here is no constitutional right to an attorney”

furnished by the government in a particular kind of pro-

ceeding, a client “cannot claim constitutionally ineffec-

11

tive assistance of counsel in such proceedings”; in that

situation, the attorney performs in a private capacity

as the client’s agent, not a state actor, and the client

therefore must “‘bear the risk of attorney error.’” /d.

at 752-753 (quoting Murray v. Carrier, 477 U.S. 478, 488

(1986)). In “our system of representative litigation . . .

each party is deemed bound by the acts of his lawyer-

agent.” Jd. at 753 (quoting Link v. Wabash R.R., 370

U.S. 626, 634 (1962)).

As petitioner implicitly concedes by relying on “the

statutory and regulatory policy of encouraging and facil-

itating aliens in retaining counsel” (Pet. 27), there is no

constitutional right to appointed counsel in immigration

proceedings. Rather, Congress has provided as a statu-

tory matter that an alien shall have the “privilege” of

being represented by counsel! of the alien’s choice “at no

expense to the Government.” 8 U.S.C. 1229a(b)(4)(A),

1362; ef. 28 U.S.C. 1654 (parallel provision providing

that a party may appear through counsel in any court of

the United States). Accordingly, when an alien has in-

voked that privilege and retained a lawyer to represent

him in removal proceedings or in filing a petition for

review, counsel’s actions are not those of the govern-

ment, but are instead attributed to the client.

Petitioner contends (Pet. 26) that the “state action”

that is needed to find a due process violation in this con-

text arises from the government’s reliance on the re-

moval order at the end of the proceeding. But that con-

tention proves too much, because it would preclude the

government from relying on any civil court order with-

out exposing itself to the risk of collateral litigation

about asserted malpractice on the part of opposing coun-

sel. And petitioner’s attempt (Pet. 19-20) to distinguish

removal proceedings from other civil litigation fails. He

12

argues that, because a removal proceeding threatens to

impose such a great. loss on an alien, it is “harely distin-

guishable from criminal condemnation” and thus trig-

gers a Fifth Amendment right to the effective assistance

of counsel analogous to that available in the criminal

context. Pet. 19 (quoting M.L.B. v. S.L.J7., 519 U.S. 102,

119 (1996)). This Court, however, has resisted calls to

view immigration proceedings as equivalent lo criminal

trials. See JNS v. Lopez-Mendoza, 468 U.S. 1032, 1038

(1984) (“Consistent with the civil nature of the |immigra-

tion] proceeding, various protections that apply in the

context of a criminal trial do not apply in a deportation

hearing.”); see also Negusie v. Holder, 129 8. Ct. 1159,

1169 (2009) (Sealia, J., concurring) (“This Court has long

understood that an ‘order of deportation is not a punish-

ment for crime.’”) (quoting Fong Yue Ting v. United

States, 149 U.S. 698, 730 (1893)). And if petitioner is

correct that immigration proceedings should be treated

like criminal] proceedings with respect to issues of legal

representation, the Constitution would require the gov-

ernment to furnish counsel to those facing removal pro-

ceedings. In the absence of any requirement of that

kind, petitioner’s claim—concerning only privately re-

tained counsel—has no apparent basis.

b. Petitioner correctly explains (Pet. 11-13) that

there is disagreement in the courts of appeals about

whether aliens in immigration proceedings have a Due

Process Clause entitlement to effective performance by

their privately retained counsel. Like the Fourth Cir-

cuit in this case, the Seventh Circuit and the Eighth Cir-

cuit. have held there is no such constitutional right. See

Magala v. Gonzales, 434 F.3d 523, 525-526 (7th Cir.

13

2005); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir.

2008). By contrast, a number of other circuits have sug-

gested or held that the Due Process Clause creates a

right to assistance by counsel that is sufficiently effec-

tive to prevent removal proceedings from being funda-

mentally unfair. See Zeru v. Gonzales, 503 F.3d 59, 72

(ist Cir. 2007); Aris v. Mukasey, 517 F.3d 595, 600-601

(2d Cir. 2008); Fadiga v. Attorney Gen., 488 F.3d 142,

155 (3d Cir. 2007); Denko v. INS, 351 F.3d 717, 723-724

(6th Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967

(9th Cir. 2008); Tang v. Ashcroft, 354 F.3d 1192, 1196

(10th Cir. 2003); Dakane v. United States Att'y Gen., 399

F.3d 1269, 1273-1274 (11th Cir. 2005).°

Notwithstanding that disagreement among the

courts of appeals, this Court should not resolve the con-

stitutional question at this time. The recent decisions

of the Fourth and Eighth Circuits demonstrate that ju-

risprudence on the issue is still developing in the courts

of appeals.‘ Ard a recent Ninth Circuit decision “as-

* As petitioner notes (Pet. 13 n.1), other Seventh Circuit decisions do

contemplate that counsel in immigration proceedings “may be so inef-

fective as to have impinged upon the fundamental fairness of the pro

ceeding in violation of the fifth amendment due process clause.” Mojsi-

lovic v. INS, 156 F.3d 743, 748 (1998) (quoting Castaneda-Suarez v.

INS, 993 F.2d 142, 144 (7th Cir. 1993)). Petitioner also quotes (Pet. 13

n.1) the passing reference to the Fifth Amendment in Sanchez v. Keis-

ler, 505 F.3d 641, 647 (7th Cir. 2007), but the court's holding there was

that the alien “did not have the fair hearing to which the vnmagration

statutes entitle her.” /d. at 649 (emphasis added).

* The Fifth Circuit has not decided the constitutional question, but

has instead “repeatedly assumed without deciding that an alien’s claim

of ineffective assistance may implicate due process concerns under the

Fifth Amendment.” Mar v. Gonzales, 473 F.3d 162, 165 (2006).

* Other pending petitions for writs of certiorari challenge later deci-

sions by the Fourth Circuit that rely on the decision in this case. See

14

sume|d]” without deciding that aliens have “a constitu-

tional right to the assistance of counsel in immigration

proceedings.” Alcala v. Holder, 563 F.3d 1009, 1015 n.11

(2009) (expressing no opinion “on the effect of” the At-

torney General’s later-vacated opinion in Compean, dis-

cussed at note 1, supra). Furthermore, as discussed he-

low, there is no need to resolve the constitutional ques-

tion because petitioner may receive an administrative

remedy of exactly the kind he seeks: If the Board

grants petitioner’s motion to reopen based on his coun-

sel’s failure to file a petition for review, that administra-

tive decision would moot petitioner’s constitutional

claim.

2. Although the Constitution does not furnish a right

to effective assistance by privately retained counsel in

removal proceedings, the Attorney General has the au-

thority, in his oversight of the administrative removal

process, to afford relief to an alien in circumstances the

Attorney General deems appropriate as a matter of dis-

cretion, including circumstances attributable to errors

by counsel in such proceedings. ‘The Board has recog-

nized an administrative remedy for deficient perfor-

mance by counsel since at least 1988. And the Attorney

General has recently directed the initiation of a Depart-

ment of Justice rulemaking to consider whether, after

twenty years, the Lozada factors that govern the

Board’s administrative resolution of claims of ineffective

assistance (see note 1, supra) should be revised. VPeti-

tioner’s case continues to be governed by “the Lozada

framework and standards as established by the Board

before Compean,” In re Compean, 25 1. & N. Dec. at 3,

Massis v. Holder, petition for cert. pending, No. 08-1392 (filed May 8,

2009); Machado v. Holder, petition for cert. pending, No. 08-7721 (filed

Dec. 11, 2008).

15

but under those standards as well, he may be entitled to

administrative relief as a result of his attorney’s error.

In this case, the court of appeals disposed of peti-

tioner’s claim about his counsel’s performance by hold-

ing that there is no constitutional right to effective as-

sisLance of counsel. Pet. App. 2la. Yet, because the

court of appeals affirmed the Board’s determination that

the Board lacked jurisdiction to grant any relief based

on counsel’s failure to file a timely petition for review in

the court of appeals, 7d. at 13a-15a, petitioner never re-

ceived a decision on the merits from the Board about

whether he should be afforded administrative relief

from the final removal order because of counsel’s error.”

Petitioner contends (Pet. 28-29) that the court of ap

peals erred in concluding that the Board lacks jurisdic-

tion to reopen proceedings on the basis of an attorney’s

failure to file a timely petition for review in the court of

appeals. As petitioner notes (Pet. 14), other circuits

have stated that the Board may consider a motion to

reopen in such circumstances. And, as the court of ap-

peals noted, the Board “itself ha[d] issued contradictory

opinions” on the question. Pet. App. 13a. Since the

court’s decision in this case, however, the Attorney Gen-

* The question of the Board's jurisdiction to reopen proceedings on

the basis of an attorney's failure to file a timely petition for review in

the court of appeals is a purely legal question. Accordingly, the juris-

diction of the court of appeals (and therefore of this Court) to remand

to the Board to allow it to determine the extent of its discretion in this

case is not likely to be affected by any decision this Court renders in

Kucana v. Holder, cert. granted, No. 08-911 (Apr. 27, 2009). Regard-

less of whether 8 U.S.C. 1252(a)(2)B)(ii) generally precludes judicial

review of the denial of a motion to reopen immigration proceedings (the

issue in Kucana), the question whether the Board has jurisdiction un-

der the governing regulations to grant relief raises a “question|[ ] of law”

that would still be reviewable under 8 U.S.C. 1252(a)(2)(D).

16

eral has clarified that the Board does have discretion to

reopen proceedings on the basis of events that oceur

after the entry of a final order of removal, including the

failure by counsel to file a timely petition for review.

See /n re Compean, 25 1. & N. Dec. at 3; see also, e.g.,

Gjondrekaj v. Mukasey, 269 Fed. Appx. 106, 108 (2d Cir.

2008). In light of that clarification, it would be appropri-

ate for this Court to vacate the court of appeals’ decision

on question two and remand the case to that court to

allow the Board to adjudicate petitioner’s claim of inef-

fective assistance unencumbered by the Board’s previ-

ous conclusion that it lacked jurisdiction to address that

claim. Although the Board, because of that erroneous

jurisdictional ruling, did not address the merits of peti-

tioner’s underlying claim concerning counscl’s actions,

the Board did recognize that petitioner had “attempted

to abide by the procedural requirements established in”

Lozada. Pet. App. 24a. There thus appears to be some

prospect that the Board would entertain his claim on the

merits on remand and grant him relief from the harm he

suffered as a result of his lawyer's error.

CONCLUSION

With respect to question one, the petition for a writ

of certiorari should be denied. With respect to question

two, the judgment of the court of appeals should be va-

cated, and the case should be remanded to the court of

appeals for further consideration in light of the Attorney

General’s determination in /n re Compean, 25 1. & N.

17

Dec. 1, 3 (2009), that the Board has jurisdiction to grant

administrative relief in a case such as this.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

DONALD E. KEENER

ERICA B. MILES

Attorneys

AUGUST 2009