In a widely praised decision by the immigration bar, Attorney General Holder vacated former Attorney General Mukasey’s decision in Matter of Compean in which Mukasey held that there was no constitutional right to effective assistance of counsel in removal proceedings. Matter of Compean, 25 I&N Dec. 1 (A.G. June 3, 2009). Mukasey’s lengthy decision is now vacated in its entirety. The BIA and IJs “should apply the pre-Compean standards to all pending and future motions to reopen based upon ineffective assistance of counsel, regardless of when such motions were filed.” Matter of Compean, 25 I&N Dec. at 3.
In addition, AG Holder also held that the BIA does have discretion to reopen removal proceedings based on claims of ineffective assistance of counsel. See Matter of Compean, 25 I&N Dec. at 3. However, Holder left it to the BIA to articulate the proper standard for such claims. See Matter of Compean, 25 I&N Dec. at 3.