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82 S. Cal. L. Rev. Postscript 1 (2008-2009)

handle is hein.journals/pstscrpt82 and id is 1 raw text is: POSTSCRIPT THE NONCONSTITUTIONAL CHARACTER OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS IN IMMIGRATION PROCEEDINGS: A BRIEF COMMENT ON AFANWI V. MUKASEY PATRICK J. GLEN* On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment.' On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting-immigration proceedings have long been recognized to be civil in nature,2 and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel's ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh * J.D., Ohio Northern University Claude W. Pettit College of Law; LL.M., Georgetown University Law Center. Mr. Glen is an attorney with the federal government. The views and opinions expressed herein are the author's own and do not represent those of the government. 1. Afanwi v. Mukasey, 526 F.3d 788, 798 (4th Cir. 2008). 2. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). 1

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