Yesterday’s post examined a circuit split over whether the Due Process Clause of the Fifth Amendment applies to private regulators. Today’s post covers yet another circuit split over the applicability of the Due Process Clause. This time, however, the circuits disagree on whether the Clause’s guarantee of effective assistance of counsel, a component of due process, applies to aliens during removal proceedings.
As the Third Circuit recently illustrated in the following footnote, this question has produced a circuit split that can only be described as "ripe for review":
Because immigration proceedings are civil rather than criminal in nature, the Sixth Amendment right to the effective assistance of counsel does not apply. Fadiga, 488 F.3d at 157 n.23. But we have recognized (along with a majority of our sister Courts of Appeals) that "[a] claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment — i.e., as a violation of that amendment's guarantee of due process." Id. at 155; see also Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131-32 (3d Cir. 2001).3
3. Like our Court, the First, Second, Sixth, Ninth, Tenth, and Eleventh Circuits have held that the Due Process Clause guarantees an alien a right to assistance of counsel that is sufficiently effective to prevent removal proceedings from being fundamentally unfair. See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); United States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003); Denko v. INS, 351 F.3d 717, 723-24 (6th Cir. 2003); Nehad v. Mukasey, 535 F.3d 962, 967 (9th Cir. 2008); Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003); Dakane v. Att'y Gen., 399 F.3d 1269, 1273-74 (11th Cir. 2005). The Fourth and Eighth Circuits have held that there is no such constitutional right. See Afanwi v. Mukasey, 526 F.3d 788, 798 (4th Cir. 2008), cert. granted, vacated, & remanded by 130 S. Ct. 350, 175 L. Ed. 2d 4 (Mem.) (2009); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008). Panels of the Seventh Circuit have issued conflicting decisions on the matter. Compare Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993) (recognizing due process right) with Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005) (denying due process right). The Fifth Circuit has "repeatedly assumed without deciding that an alien's claim of ineffective assistance may implicate due process concerns under the Fifth Amendment." Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).
Contreras v. Att'y Gen. of the U.S., No. 10-4235 (3d Cir. Jan. 4, 2012). Judge Thomas Ambro, writing for the court, summarized the Third Circuit's stance on the issue:
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.
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