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Lame-duck attorney general revamps immigration appeals process

To the dismay of many, Attorney General Michael Mukasey during his final days in office has written an order overruling 20 years of standard immigration law practice.

Attorney General Michael Mukasey
REUTERS/Robert Galbraith
Attorney General Michael Mukasey, shown during a March 2008 speech, in his final days in office has issued a ruling that is upsetting many in the immigration legal community.

To the dismay of many, Attorney General Michael Mukasey during his final days in office has written an order overruling 20 years of standard immigration law practice.

Until now, the courts generally ruled that, based on the Fifth Amendment’s guarantee of due process, immigrants were entitled to a new deportation hearing if they lost because of mistakes made by their lawyers.

But in his Jan. 7 opinion (PDF), Mukasey wrote, “There is no Fifth Amendment right to effective assistance of counsel in removal proceedings.” Therefore, he concluded of the two cases most often cited in this area, “those decisions are overruled.”

Courts can choose to reopen cases “as a matter of administrative grace,” Mukasey said, but because there is “a strong public interest in the expeditiousness and finality of removal proceedings,” it will be solely at the court’s discretion.

Immigration lawyers call policy change unfair
Immigration lawyers say the ruling is unfair and could even jeopardize the lives of legitimate asylum seekers who have the misfortune to choose incompetent people to represent them. Or in cases of immigrants with spouses and children who are U.S. citizens, said Minneapolis immigration attorney Jeff Larson, “they’re gone forever and you’ve split apart a family.”

“It’s shocking that you have the attorney general making a decision like this within days of getting the boot,” Larson added. It’s possible that the Obama administration will reverse Mukasey’s ruling, he said, but it probably won’t be the top priority. “They’re going to be attending to many things.”

Numerous legal groups have voiced their opposition to the decision, including the American Bar Association, the American Immigration Law Foundation, the American Immigration Lawyers Association and the American Civil Liberties Union.

Of particular concern to these groups is the trend of notario fraud, in which illegitimate “immigration consultants” offer services they are not legally qualified to provide. Often, they call themselves “notarios,” a word that, in many Spanish-speaking countries, refers to actual lawyers, whereas a notary in the United States merely has the right to certify documents.

“What the attorney general is saying is, what you get is what you get,” said Paschal Nwokocha, who chairs the Minnesota chapter of the American Immigration Lawyers Association. “Too bad that lawyer didn’t do a good job for you.”

Deportation hearings aren’t covered by the Sixth Amendment guarantee to counsel because they are civil cases, not criminal. “Any right an alien may have in this regard is grounded in the Fifth Amendment guarantee of due process rather than the Sixth Amendment right to counsel,” according to the 1988 case Matter of Lozada, which established the now standard practice of inefficient counsel appeals.

Mukasey says protection is not guaranteed
But Mukasey emphasized the phrase “may have” and concluded that, in fact, this right is not guaranteed at all. “The Due Process Clause applies only to governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests,” he wrote.

Immigration advocates consider this a political move by an administration taking advantage of its lame-duck position. The idea of inefficient counsel appeals was challenged in 2003, but the Bureau of Immigration Appeals upheld its 1988 Lozada ruling. Since then, the American Immigration Law Foundation and the ACLU wrote in an August objection to Mukasey’s initially proposed order that there has not been “any change in circumstance that warrants the sudden upsetting of this precedent.”

John Keller, executive director of the Immigrant Law Center of Minnesota, called the order a “significant blow.”

“The underlying principle of a fair legal system is one of the things that distinguishes the United States from other countries,” Keller said, “particularly countries our immigrant and refugee clients who we serve come from.”

Mukasey acknowledged immigrant advocates’ concerns in his opinion, but stated that arguments of unfairness are “insufficient to override the relevant constitutional holdings.” Furthermore, he said, if these arguments were valid, then immigrants should be entitled to government-funded attorneys the same way criminal defendants are. “Yet no court has ever held that such a right exists in removal proceedings.”

“In sum,” he concluded, “there is no valid basis for finding a constitutional right to counsel in removal proceedings, and thus no valid basis for recognizing a constitutional right to effective assistance of privately retained lawyers in such proceedings.”