Attorney General Michael Mukasey ruled Wednesday that aliens have no constitutional right to challenge the outcome of their deportation hearings based on their lawyers' mistakes.
Mukasey's 34-page opinion is binding on the nation’s 53 immigration courts and the Board of Immigration Appeals, which are overseen by the Justice Department's Executive Office for Immigration Review.
The ruling dispenses with a 15-year-old precedent, established in Matter of Lozada, that allowed aliens to obtain a new hearing due to lawyer error. While aliens have no Sixth Amendment right to counsel, Lozada acknowledged their right to effective assistance under the due process clause of the Fifth Amendment.
The opinion does not rule out aliens succeeding on a claims of ineffective assistance, but it is expected to sharply reduce their chances. Immigration judges and the BIA will have complete discretion in assessing the claims, and the the opinion raises the standard for prevailing under them. Aliens must show that their attorneys' failings were "egregious" and that they likely affected the outcome of the case.
"Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel," Mukasey wrote.
Immigrants rights groups were sharply critical of the opinion. "There’s been a longstanding constitutional right recognized by the agency to obtain a new hearing due to counsel error," said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project. "The attorney general has no abruptly eliminated that constitutional right."
Gelernt said he expects the opinion to be appealed. In the meantime, aliens may still try to appeal BIA decisions to the federal appellate courts, but Gelernt said most circuits will likely defer to Mukasey's ruling. The ACLU and other groups intend to lobby Congress and the incoming administration to scrap Mukasey's opinion, Gelernt said.
The attorney general signaled his intent to review the precedent in August, when he ordered the BIA to hand over three recent opinions that dealt with ineffective assistance claims. (Click here for Legal Times' previous coverage of the review.)
Mukasey, in his opinion, noted that the legal landscape has changed since Lozada was decided in 1988. While several federal appellate courts, including the 1st, 2nd, and 9th circuits, recognize either a statutory or constitutional right to effective assistance for aliens in removal proceedings, more recent rulings during the Bush administration -- from the 4th, 7th, and 8th circuits -- have rejected the notion.
"I conclude, as have a growing number of federal courts, that the Constitution does not confer a constitutional right to effective assistance of counsel in removal proceedings," Mukasey wrote. "The reason is simple: Under Supreme Court precedent, there is no constitutional right to effective assistance of counsel under the Due Process Clause or any other provision where -- as here and as in most civil proceedings -- there is no constitutional right to counsel, including Government-appointed counsel, in the first place."
The core of the argument is that due process clause only guards against actions that can be attributed to the government. But aliens have no constitutional right to counsel, unlike criminal defendants, so the government is not responsible for the conduct of their privately retained lawyers.
More than a dozen organizations and individuals filed amicus briefs, opposing a rollback of Lozada, including the American Civil Liberties Union, the National Immigrant Justice Center, the American Immigration Law Foundation, and the American Immigration Lawyers Association. The groups argued that due process right to a full and fair hearing on the merits include a specific right to effective assistance.