The courts of appeals continue to affirm that noncitizens have a constitutional right under the Fifth Amendment Due Process Clause to fundamentally fair removal proceedings, and that incompetent counsel may deprive people of that right. Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir. 2007) (ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if, and to the extent that, the proceeding is thereby rendered fundamentally unfair); Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) (the Fifth Amendment requires that deportation proceedings comport with due process; due process concerns may arise when retained counsel provides immigration representation that falls so short of professional duties as to impinge upon the fundamental fairness of the hearing); Fadiga v. Atty Gen., 488 F.3d 142, 155 (3d Cir. 2007) (a claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment as a violation of the guarantee of due process); Sako v. Gonzales, 434 F.3d 857, 863-64 (6th Cir. 2006) (to prove he has suffered a violation of due process, the petitioner needs to establish that ineffective assistance of counsel prejudiced him or denied him fundamental fairness); Jezierski v. Mukasey, 543 F.3d 886, 890 (7th Cir. 2008), petition for cert. filed, 08-656 (Nov. 17, 2008) ("The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the [noncitizen] to proceed without the assistance of a competent lawyer would deny him due process of law ...."); Nehad v. Mukasey, 535 F.3d 962, 973 (9th Cir. 2008) (an attorneys deficient performance and the prejudice resulting from it can result in a violation of the Fifth Amendment right to due process); Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (" a petitioner like Osei can state a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, the petitioner was denied a fundamentally fair proceeding."); Dakane v. U.S. Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2004) (it is well established in this Circuit that a noncitizen in civil deportation proceedings has the constitutional right under the Fifth Amendment Due Process Clause to a fundamentally fair hearing, including effective assistance of counsel.) (emphasis in original); Ouyoung v. Mukasey, 07-3867, 2009 U.S. App. LEXIS 224, *2-3 n.2 (2d Cir. Jan. 8, 2009) (unpublished) ("Contrary to the governments argument, it is well-established that claims of ineffective assistance of counsel raised to the BIA in motions to reopen are rooted in the Fifth Amendment Due Process Clause, and in the statutory right to counsel."); Al Roumy v. Mukasey, 07-3328, 2008 U.S. App. LEXIS 18472, *18 n.3 (6th Cir. Aug. 27, 2008) (unpublished) (noting that the government argued that there is no right to effective assistance of counsel and rejecting such position as conflicting with controlling precedent); contra, Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008), petition for cert. filed, 08-906 (Jan. 16, 2009)(there is no constitutional right to effective assistance of counsel in removal proceedings); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); cf. Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001) ("the question whether there is ever a constitutional right to counsel in immigration cases is ripe for reconsideration"); Jezierski v. Mukasey, 543 F.3d 886, 890 (7th Cir. 2008), petition for cert. filed, 08-656 (Nov. 17, 2008) (deficient performance of counsel might constitute a violation of the Fifth Amendment: "The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the alien to proceed without the assistance of a competent lawyer would deny him due process of law.").