The Immigrant Struggle for Effective Counsel

An Empirical Assessment

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. Some circuit courts of appeals have held that a specific agency within the Department of Justice—the Board of Immigration Appeals—has the sole, final decision-making authority on these claims. Other circuit courts, in contrast, have stated that because IAC petitions are constitutional in nature, noncitizens are entitled to take BIA decisions to Article III appellate courts.

As this study shows, statutory text, precedent, and the inscrutability of many of the BIA’s rulings support the notion that the federal circuit courts should retain jurisdiction in these cases—even given Thuraissigiam. By creating a unique dataset containing 1,615 cases, this study empirically evaluates those publicly available ineffective assistance of counsel judgments delivered by the BIA. The results reveal that the BIA’s holdings often are summarily issued and lack detailed explanation, with the government prevailing in most instances. With the stakes so high, it is imperative that Article III circuit courts are able to independently review these ineffective assistance cases, especially before the finality of a negative immigration order takes effect.

a. Milt and Judi Stewart Professor of Law and Director of the Stewart Center on the Global Legal Profession, Indiana University-Bloomington Maurer School of Law. This project could not have been completed without the incredible assistance of Ingrid Eagly and Kevin Johnson, whose immigration expertise, knowledge, feedback, and amazingly close reading of the manuscript aided the author immensely. Additionally, for their invaluable statistical and technical help, the author is grateful to Vitor Dias, Carl James, Ethan Michelson, and Jeff Stake. For their excellent research assistance and review of early drafts, the author thanks Melanie Chamberlain and Lara Gose. Joe Hoffmann, Ryan Scott, and Tung Yin helped with astute insights on the criminal law aspects of this article. And Bert Kritzer, Christiana Ochoa, and Deborah Widiss offered crucial conceptual advice on framing the issues related to ineffective legal assistance and legal malpractice.

The full text of this Article is available to download as a PDF.