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It Seems That Lozada Does Not Belong In The Immigration Benefits ContextIn my October 28, 2011, article I asked: “Does Loz...
In Strickland, the U.S. Supreme Court held:      “To obtain relief due to ineffective assistance of counsel, a criminal de...
A conclusion that counsel rendered effective assistance is not a finding of factbinding on the federal court to the extent...
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It seems that Lozada does not belong in the immigration benefits context

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Immigration Benefits or Relief vs. Due Process in Adversarial Proceedings

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It seems that Lozada does not belong in the immigration benefits context

  1. 1. It Seems That Lozada Does Not Belong In The Immigration Benefits ContextIn my October 28, 2011, article I asked: “Does Lozada Belong in the ImmigrationBenefits Context?1” In a decision dated January 4, 2012, the Third Circuit Court ofAppeals went a long way towards answering that question. At least in the ThirdCircuit, apparently the answer is leaning towards “no”.Margarito Contreras, et al v. Atty Gen USA, No. 10-4235 (3rd Cir. 01/04/2012)2: “This immigration case requires us to decide, among other things, whether the Fifth Amendment’s Due Process Clause guarantees an alien effective assistance of counsel in preparing, filing, and appealing a labor certification application and a visa petition before the start of removal proceedings. We hold that it does not, and thus deny the petition for review.”I say that the answer is leaning towards no but I hold off from being emphaticabout it. There are certain legal entitlements under the INA that cross the bounds ofthe benefits and removal adjudication contexts. These grey areas entail clear legalentitlements. When an individual has a solid claim to a constitutional or statutoryentitlement, no degree of ineffective assistance is insurmountable. On the otherhand, when even a smidge of pure discretion underlies the grant or denial or anybenefit or some form of relief then, it may be a prudential conservation of limitedresources that is the determining factor in answering this question I posed.The Third Circuit relied on its own Fadiga v. Att’y Gen., 488 F.3d 142 (3d Cir.2007)3 and thereby, implicitly contrasting the instant case (Contreras) againstStrickland v. Washington, 466 U.S. 668, (1984) (establishing an error-and-prejudice test applicable to Sixth Amendment claims of ineffective assistance ofcounsel in criminal cases)4.1 http://www.ilw.com/articles/2011,1028-whalen.shtm2 http://www.ca3.uscourts.gov/opinarch/104235p.pdf3 http://law.justia.com/cases/federal/appellate-courts/F3/488/142/496791/4 Washington was executed in July 1984, two months after the Supreme Courts decision.[1] Hehad spent seven years on death row.By Joseph P. Whalen (January 19, 2012) Page 1
  2. 2. In Strickland, the U.S. Supreme Court held: “To obtain relief due to ineffective assistance of counsel, a criminal defendant must show that counsels performance fell below an objective standard of reasonableness and that counsels deficient performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding would have been different.”The principle from Strickland arose from an “adversarial” proceeding. Specificallya criminal case and extended that to the death penalty phase because it was“sufficiently like a trial in its adversarial format”. That same adversarial formatapplies to Removal Proceedings.Benefits adjudications are not (or should not be) adversarial in nature. Instead, theproper approach in the benefits context is an inquisitorial format. Even if theadjudicator is playing the role of “the government”, (s)he is also bound to seek thetruth and ensure fairness in process and result. It is true that the lines between the“ideally” clearly defined roles of the administrative adjudicator get blurred fromtime to time. They tend to get blurred in order to reach a fair and equitableoutcome in the interests and furtherance of justice. So, if an adjudicator whetheran IJ, the BIA, AAO, or some DHS Officer has discretion in any matter, (s)he isobligated to exercise it in such a manner that will not be challenged as arbitrary,capricious, an abuse, or contrary to law. The result must be able to stand up toscrutiny so that it will not be overturned by an actual “reasonable adjudicator”upon review.The Strickland decision’s standards did not establish mechanical rules. TheSupreme Court stated that the ultimate focus of an ineffective assistance of counselinquiry must be on the fundamental fairness of the proceeding whose result isbeing challenged. The principles governing ineffectiveness claims apply in federalcollateral proceedings as they do on direct appeal or in motions for a new trial. Abenefits determination is not quite akin to a trial as was the focus of the Stricklandcourt.By Joseph P. Whalen (January 19, 2012) Page 2
  3. 3. A conclusion that counsel rendered effective assistance is not a finding of factbinding on the federal court to the extent stated by 28 U.S.C. § 2254(d), but is amixed question of law and fact. The Supreme Court made it clear that if it is easierto dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,that course should be followed. The easy way out for the reviewer is often tofreshly examine the merits of the case. That is the actual course taken by the AAOthrough its de novo reviews whether it states so or not. In certain instances AAOgets hung up in a nonsensical procedural quagmire when it should simply take theeasy route and reexamine the merits of a case. Granted that there are ultimate limitson certain things. Where the outcome in a case is predestined one way or the otheras a matter of law, then reaching that truth is what is most important, proceduralerrors (whether by the adjudicator below or by counsel) be damned. I have statedbefore that I want to see finality but that finality must be on the merits rather thanon a technicality. Lastly, when a particular case in the benefits context concerns alegally enforceable entitlement, then it is the adjudicator’s duty to reach the merits.The Seventh Circuit has spoken on the issue of finality in a matter about which Iam passionate. In Ortega (excerpt below), the issue was a claim to United StatesCitizenship. I can think of no other right more important under the INA thancitizenship. It is the ultimate prize and clearly a legally enforceable entitlement fora citizen by jus soli or jus sanguinis5, with naturalization in a class all its own.Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)6 provides: “.... Congresss solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congresss concern that individuals be able to settle, definitively, the issue of citizenship.”..... “As we have discussed in some detail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship [should] be filed as a motion to reconsider or to reopen. ...” [§ 341.6 has been repealed, this issue is now covered by § 341.5(e) per 76 FR 53764, 53805 (8/29/11), effective Nov. 28, 2011.] The regulation is still clunky. However, the court stated it in a workable manner.5 Covers acquisition at birth abroad and “derivation” (now called automatically acquired citizenship).6 Found at: http://caselaw.findlaw.com/us-7th-circuit/1497479.html orhttp://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjb&searchTerm=hYKL.gLja.ZCaW.LabT&searchFlag=y&l1loc=FCLOWBy Joseph P. Whalen (January 19, 2012) Page 3

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