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).


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