Asian American Organizations Applaud Attorney General’s Order to Vacate Ruling Undermining Due Process Rights of Immigrants 

Washington, D.C. – The Asian American Justice Center (AAJC) and its affiliates–the Asian Pacific American Legal Center (APALC) of Los Angeles, Calif., the Asian Law Caucus (ALC) of San Francisco, Calif. and the Asian American Institute (AAI) of Chicago, Ill.–applaud Attorney General Eric Holder for vacating the decision in Matter of Compean, Bangaly & J-E-C-, a Bush administration decision that eroded noncitizens’ right to competent legal representation in deportation proceedings.  

“By vacating the Compean decision, Attorney General Holder has strengthened safeguards to prevent unjust deportations,” said Vincent A. Eng, deputy director of AAJC. “Attorney General Holder’s decision represents progress in restoring due process and protecting the rule of law in the American immigration system.”

Issued by former Attorney General Michael Mukasey on January 7, 2009, the Compean decision ruled that noncitizens do not have a constitutional right to representation by a competent attorney in deportation proceedings, even if they pay the full cost themselves.   The decision also created new procedures that made it significantly more difficult for noncitizens to raise claims of ineffective assistance of counsel before the Board of Immigration Appeals.

“Noncitizens, who already face many obstacles and setbacks in our immigration system, must have a fair, accessible process to appeal errors or deficient representation by their lawyers in deportation proceedings,” said Stewart Kwoh, executive director of APALC.  “Attorney General Holder has moved our system closer to that ideal.”

Ignoring a well-established understanding of a noncitizen’s right to effective legal representation, Compean arbitrarily overruled the prior decision in Matter of Lozada, a case that established the procedure for filing claims of ineffective assistance. In addition, prior to Compean, the Board of Immigration Appeals and most federal courts had operated under the assumption that noncitizens do have a right to effective assistance in deportation proceedings. Despite acknowledging that the Lozada framework had “largely stood the test of time” even 15 years after its initial adoption, Compean effectively reversed decades of precedent.

“The Board of Immigration Appeals wields enormous power over noncitizens; it decides a person’s right to remain in the United States,” said Tuyet Le, executive director of AAI.  “The Compean decision meant that deserving immigrants could be unfairly misled through this high-stakes system.”

The vacating of the Compean decision has significant ramifications for Asian Americans seeking justice in the immigration court system. Of the nation’s 15 million Asian Americans, nearly two-thirds are foreign-born. According to the Department of Justice’s Executive Office for Immigration Review, China, Indonesia, India, Pakistan and the Philippines were among the top 20 nations of origin for individuals in immigration court proceedings in 2007; these countries placed similarly in appeals of decisions in deportation proceedings. Additionally, data from the Department of Homeland Security shows that applicants from China represented the largest share of individuals requesting asylum as a defense against deportation.  

“Often faced with language barriers and unfamiliar with the complexities of the American legal system, Asian American immigrants are particularly vulnerable to wrongful guidance by their lawyers,” said Titi Liu, executive director of ALC. “This decision helps to ensure that immigrants will continue to have real access to the very limited relief from deportation that the law allows.” 

In addition to vacating Compean, Attorney General Holder’s June 3 decision directed the Executive Office of Immigration Review to evaluate the Lozada framework, propose a new framework for claims of ineffective assistance of counsel in immigration proceedings and collect public comment on the issue. In the interim, attorneys representing noncitizens should utilize Lozada standards when evaluating their clients’ standards.

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