A "FUNDAMENTALLY UNFAIR" REMOVAL PROCEEDING: DENIAL OF DUE PROCESS AND INEFFECTIVE ASSISTANCE OF COUNSEL IN CONTRERAS V. ATTORNEY GENERAL

Abstract: On January 4, 2012, in Contreras v. Attorney General of the United States, the U.S. Court of Appeals for the Third Circuit held that the Fifth Amendment due process right to effective assistance of counsel does not apply to immigration filings prior to removal proceedings. The court reasoned that this is the case even if counsel's mistakes jeopardize a subsequent removal preceding. In so holding, the court failed to recognize that the fundamental fairness of a removal hearing may be based on years of process and that pre-proceeding asylum applications are inextricably linked with removal procedures themselves. This decision leaves immigrants without a remedy when their attorneys make mistakes that negatively affect their removal proceedings.IntroductionIn January 2008, immigration attorney Tahir Mella met with Margarito Contreras to discuss Margarito's recently denied petition for employment- based permanent residency in the United States on behalf of him and his wife, Norma.1 Although Mella knew, or should have known, that the deadline to file an appeal had long passed, he requested one thousand dollars from the immigrant family to file an untimely motion to reconsider the visa petition.2 Mella did not advise the Contrerases of other options.3 When immigration officials rejected the motion, Mella's office again represented the Contrerases at their deportation proceedings for an additional fee of fifty-five hundred dollars. 4 Instead of appearing himself, Mella sent an inexperienced immigration attorney who misrepresented the facts of the Contrerases' appeal of their denied visa petition.5 Moreover, the attorney requested that the court rule for voluntary departure, a request the Immigration Judge (IJ) thought would "shock[] and confuse[]" the Contrerases.6 At the final hearing in April 2008, yet another attorney from Mella's firm requested voluntary departure, which the court granted.7On August 18, 2008, the Contrerases filed a motion to reopen their case on the basis of prior ineffective assistance of counsel.8 The IJ denied the motion and the Contrerases appealed to the Board of Immigration Appeals (BIA).9 The BIA agreed with the IJ, finding that the Contrerases had (1) failed to demonstrate that the immigration hearing itself was unfair, and (2) failed to show that counsel's actions during the removal proceedings had prevented them from reasonably presenting a case.10On appeal, the Third Circuit upheld the denial of the Contrerases' motion to reopen the case.11 The court held that although ineffective assistance of counsel during removal proceedings is recognized under the Fifth Amendment as a violation of due process, counsel's mistakes must be so severe that the fundamental fairness of the proceedings is violated.12 Though the court agreed that absent Mella's mistakes the proceeding might have resulted differently, the court found no prejudice at the hearing itself.13 Instead, the Third Circuit held that due process for immigration proceedings ensures only a fundamentally fair hearing and does not apply to pre-proceeding immigration petitions.14By finding that the Contrerases' hearing was fair despite Mella's "inept conduct," the court failed to recognize that the fundamental fairness of a removal hearing may be based on years of process starting well before removal proceedings begin.15 Because pre-proceeding applications are inextricably linked with removal measures, the court's refusal to apply due process protections to pre-proceeding mistakes narrows due process for immigrants.16I. The Contrerases' Denied Visa Petition, Voluntary Removal, and AppealMargarito Contreras and his wife Norma Contreras entered the United States from Mexico in 1993 and 1998, respectively.17 In 2000, Margarito began to seek employment-based permanent residence in the United States, also known as obtaining a "green card."18 Margarito qualified for a green card as a beneficiary of a labor certification application filed before April 30, 2001. …