From: wolda002@umn.edu
Date: Thu Jan 08 2009 - 21:36:22 EST
US immigrants facing deportation have 'no right to an effective attorney'
Immigration lawyers describe move by attorney general as a last-minute
evisceration of a constitutional right
* Daniel Nasaw in Washington
* guardian.co.uk, Friday 9 January 2009 00.50 GMT
US attorney general Michael Mukasey and George Bush. Photograph: Jason
Reed/Reuters
America's top law enforcement official has declared that immigrants facing
deportation have no right to an effective attorney, a move immigration
lawyers and the country's top lawyers' guild described as a last-minute
evisceration of a constitutional right.
In Wednesday's decision, George Bush's attorney general, Michael Mukasey,
wrote that immigration courts need not reopen "removal" - or deportation -
proceedings on the grounds that an immigrant's attorney was incompetent. As
a result, illegal immigrants and asylum seekers who lose deportation
hearings because their attorneys fail to file legal papers on time, who do
not show up for hearings or myriad other infringements lack recourse in
immigration court.
The decision stems from three cases in which immigrants appealed
deportation orders. In one, the lawyer of a Malian man who had overstayed
his visa but married an American citizen neglected to file a legal brief in
an appeal of a deportation order. In another case, the lawyer representing
a Colombian who sought asylum under the United Nations convention against
torture failed to file a legal brief. A coalition of law school clinics and
immigration lawyers opposed the move, as did the American Bar Association,
the top lawyers' guild in America.
"Immigrants, refugees and asylum seekers often are unfamiliar with our
language, culture, and legal system, and as a result are especially
vulnerable to being deceived by persons who are not authorized to practice
law, or harmed as a result of mistakes by attorneys who lack sufficient
familiarity with our nation's complex immigration laws," the American Bar
Association's president, H Thomas Wells Jr, wrote to Mukasey.
Immigration courts have for decades operated under the premise that
immigrants enjoy a constitutional right to effective counsel, immigration
lawyers said. Criminal defendants whose lawyers fail to represent
defendants at a basic level of competence may seek a new trial. Mukasey
wrote that the US constitution affords a right to counsel, and hence a
right to effective counsel, only in criminal matters. Immigration
proceedings are civil matters, he wrote, and therefore that right does not
apply.
In a brief opposing the decision, the American Immigration Law Foundation
argued that in deportation proceedings, the government exercises its power
to deprive immigrants of their liberty.
"The entire removal apparatus was created by the government; removal
proceedings are initiated and conducted by the government; the government
detains removable non-citizens until they can be removed, often throughout
their proceedings; and removal is executed by the government," attorneys
Nadine Wettstein and Emily Creighton wrote. "When a removal order is
obtained in a process tainted by ineffective assistance of counsel," they
continued, "it is the government's proceedings that have denied the
respondent of constitutional rights".
A spokesman for the US justice department said in an interview that an
immigrant denied a second hearing under Mukasey's decision will still be
able to appeal to a higher-level panel of immigration judges, and
ultimately to federal appeals courts.
The spokesman, Charles Miller, added that if Obama's nominee as attorney
general, Eric Holder, disagrees with the decision he may overturn it.
"The attorney general based this on a review of court decisions, and I
can't go beyond what he wrote in his opinion," Miller said.
Immigration lawyers on Thursday described the move as a last-minute blow to
the US constitution by an administration that has for eight years sought to
limit constitutional rights, for instance by arguing that prisoners at
Guantánamo Bay have no access to US courts.
"It's a departure from long standing legal precedent," said David Leopold,
a Cleveland, Ohio immigration attorney and vice-president of the American
Immigration Lawyers Association. "In the waning days of this administration
the attorney general has taken one more stab at a fundamental
constitutional right, in this case the right to counsel for people who are
facing the lifetime banishment from the United States."
Miller, spokesman for the justice department, disagreed.
"I can't tell you how long the attorney general was reviewing this - and
those people working with him - but based on the opinion it looks like it
was well thought-out before it was finally signed off and publicised," he
said.