Fourth Circuit Confirms Fifth-Amendment Right to Effective Retained Counsel in Removal Proceedings
(Sulma Guandique-De Romero v. Pamela Bondi, 24-1154, decided 13 Aug 2025)

Introduction

The published decision of the United States Court of Appeals for the Fourth Circuit in Sulma de Jesus Guandique-De Romero v. Bondi marks a watershed moment for immigration jurisprudence. For the first time in this circuit, a court has squarely held that the Fifth Amendment’s guarantee of a fundamentally fair removal proceeding is violated when a non-citizen receives ineffective assistance from retained counsel. The ruling grants Ms. Guandique and her derivative children a new opportunity to seek asylum and simultaneously announces a constitutional framework that will govern future ineffective-assistance claims in immigration matters.

The petitioners, Salvadoran nationals fleeing gang-imposed extortion and sexual threats, asked the court to review the Board of Immigration Appeals’ (“BIA”) refusal to reopen their case. The BIA had concluded that prior counsel’s errors—most notably, proposing a facially defective particular-social-group (“PSG”) theory—did not amount to ineffective assistance. The Fourth Circuit disagreed, granting the petition, reversing the BIA’s denial of reopening, vacating the underlying asylum denial, and remanding for a new merits hearing.

Summary of the Judgment

1. The court recognized that ineffective assistance by retained immigration counsel can breach the Fifth Amendment’s Due Process Clause.
2. It adopted a two-prong analytical structure mirroring Strickland v. Washington: (a) objectively reasonable competence and (b) prejudice (“reasonable probability” of a different outcome).
3. Applying that test, the panel held that counsel’s PSG theory—“Salvadorans whose spouses are gainfully employed in the United States”—was foreclosed by controlling precedent, fell below minimum competence, and therefore rendered the hearing fundamentally unfair.
4. Because alternative viable PSGs (“nuclear family of William Romero” or “Salvadoran women living under gang control”) offered a strong chance of success, prejudice was established.
5. The petition for review was granted; the BIA’s decision was reversed in part, vacated in part, and remanded with instructions to reopen and provide a new hearing.
6. Chief Judge Diaz concurred in the judgment but urged a narrower, non-constitutional resolution, invoking Ashwander principles.

Detailed Analysis

1. Precedents Cited and their Influence

• Strickland v. Washington (U.S. 1984) – The court imported the “reasonable competence” and “reasonable probability” prejudice framework into the immigration-due-process context.
• Cuyler v. Sullivan (U.S. 1980) – Cited for the proposition that state action exists when the government obtains a conviction (or here, a removal order) through tainted proceedings.
• Burlington Truck Lines & Chenery – Used to reject post-hoc government rationalisations not advanced by the agency below.
• Lizama v. Holder (4th Cir. 2011) – The controlling precedent that bars wealth-based PSGs; it rendered counsel’s chosen PSG indefensible.
• Hernandez-Avalos v. Lynch (4th Cir. 2015) & Alvarez Lagos v. Barr (4th Cir. 2019) – Provided template PSGs and nexus analysis which the panel found could have succeeded for Ms. Guandique.
• Fadiga v. Attorney General (3d Cir. 2007), Paucar v. Garland (2d Cir. 2023) – Sister-circuit cases recognising ineffective assistance as a due-process violation; used to join the growing consensus.
• Afanwi v. Mukasey (4th Cir. 2008, vacated) – Previously suggested no constitutional right; the panel expressly declined to follow because Supreme Court vacatur stripped precedential force.

2. The Court’s Legal Reasoning

The majority opinion, authored by Judge Wynn, proceeds in three logical steps:

1. Standard of Review – Although reopening decisions are usually reviewed for abuse of discretion, the court treated the BIA’s view on ineffective assistance as a mixed question of law and fact warranting de novo review.
2. Constitutional Predicate – After canvassing other circuits, the court declared that the Fifth Amendment encompasses a right to effective assistance when counsel is retained in removal proceedings, reasoning:
   • Due process attaches to the removal context.
   • 8 U.S.C. § 1362 grants the statutory right to hire counsel.
   • Given the complexity and high stakes, incompetent representation can render a hearing fundamentally unfair.
   • The State, by conducting the removal hearing, is the actor ultimately responsible for errors that taint the proceeding.
3. Adoption of Strickland-type Test – The panel explicitly used “reasonable competence” and “reasonable probability” as the performance and prejudice prongs, respectively.
4. Application to Facts – Counsel’s PSG selection was “dead on arrival,” violating professional norms. Alternative PSGs had substantial merit, so the error was prejudicial.

3. Potential Impact

The ruling has immediate and long-term consequences:

• BIA Practice – Immigration judges and the BIA must now evaluate ineffective-assistance claims under a constitutional lens, not merely as discretionary reopening.
• Litigation Strategy – Practitioners representing non-citizens will need to preserve and document tactical choices to survive “reasonable competence” scrutiny.
• Administrative Burden – Expect an uptick in Lozada-compliant IAC motions to reopen, particularly within the Fourth Circuit (Maryland, Virginia, West Virginia, North and South Carolina).
• Uniformity across Circuits – By joining nine other circuits, the Fourth reduces doctrinal fragmentation, increasing the likelihood that the Supreme Court will eventually endorse (or refine) the consensus.
• Substantive Asylum Law – The court’s favorable discussion of “family-based” and “gender-based” PSGs further solidifies those categories across the circuit.

Complex Concepts Simplified

Particular Social Group (PSG)

A PSG is a collection of persons who share a trait that is (1) unchangeable or so fundamental one should not be required to change it, (2) clearly defined (particular), and (3) recognized by society as distinct. Think of it as a club whose members share a fixed identity readily understood within their community.

Ineffective Assistance in Immigration vs. Criminal Law

In criminal cases the Sixth Amendment explicitly guarantees the right to effective counsel. Immigration cases are civil, so the Sixth Amendment does not apply. However, because the hearing may decide life and death, the Fifth Amendment’s broader promise of due process can step in to protect against gross lawyer incompetence.

Motion to Reopen

A procedural device allowing a non-citizen to ask the BIA to take a second look at a case because of new evidence or changed circumstances. Here, it was used to allege attorney errors that prevented a fair hearing.

Conclusion

Sulma Guandique-De Romero v. Bondi charts crucial new territory. The Fourth Circuit firmly aligns itself with the predominant view that retained counsel’s ineffectiveness in removal proceedings can violate due process. By transplanting the familiar Strickland framework into immigration law, the court supplies lower tribunals with a concrete metric and simultaneously amplifies the professional obligations of immigration lawyers. The decision not only revives Ms. Guandique’s quest for refuge but also recalibrates the balance between procedural regularity and individual rights in one of the nation’s most consequential civil arenas.