Being Deprived of the Right to Effective Counsel in Removal Proceedings: Why the Eighth Circuit’s Decision in Rafiyev Must Be Overturned

Authors

Charles Shane Ellison, Duke Law SchoolFollow

Document Type

Article

Publication Date

2016

Keywords

Matter of Lozada, Rafiyev v. Mukasey, ineffective assistance of counsel in removal proceedings

Abstract

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter of Lozada. Second, I will discuss the Eighth Circuit’s treatment of ineffective assistance of counsel in removal proceedings and how it compares with its sister circuits. Third, I will argue that the Eighth Circuit has erred in this area of the law and should join the vast majority of other circuits in the country by holding that there is a constitutional due process right to effective counsel in immigration proceedings. Finally, I will present a strategy that a future Eighth Circuit panel could use to overrule its previous decisions.

Citation

Charles Shane Ellison, Being Deprived of the Right to Effective Counsel in Removal Proceedings: Why the Eighth Circuit’s Decision in Rafiyev Must Be Overturned, 49 Creighton Law Review 523-554 (2016)