Immigrants rights groups are asking Attorney General Eric Holder Jr. to reconsider an 11th-hour ruling by his predecessor that aliens have no right to effective legal assistance during deportation proceedings.
Then-Attorney General Michael Mukasey’s Jan. 7 opinion scrapped a 20-year-old precedent established in Matter of Lozada, which held that aliens could reopen their hearings based on lawyer error. The ruling 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 American Immigration Law Foundation, the American Civil Liberties Union, and more than 50 other immigrants rights groups and law firms wrote Holder today, asking him to vacate the opinion and provide them an opportunity to file legal briefs supporting their position that the right to a full and fair hearing on the merits includes a specific right to effective assistance.
Mukasey issued his opinion after reviewing three decisions by the BIA. In their brief, the groups say his review was “too sudden and hurried” for the interested parties to make their case.
“The decision overrules decades of precedential decisions from the Board of Immigration Appeals and disagrees with numerous courts of appeals on an issue of great national significance,” the brief states.
Ineffective assistance claims were among the most common avenues available for aliens to reopen their cases, and in the District and elsewhere, immigration lawyers are disciplined in higher numbers than their peers in other practices. But the nation's 230 immigration judges have been swamped by nearly 300,000 new cases a year, and they haven't been able to keep up. Dispensing with Lozada, Mukasey wrote, would help with the backlog by weeding out frivolous claims.
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. Some federal appellate courts recognize Lozada, but in a number of other circuits, the Bush administration successfully argued that the due process clause only guards against actions that can be attributed to the government.
"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 government cannot be held responsible for the conduct of immigrants’ privately retained lawyers, Mukasey wrote, but the Justice Department may, “as a matter of administrative grace,” reopen deportation proceedings in some cases. He set forth an elaborate set of guidelines for immigration judges to follow in making such determinations but stressed that they may use their discretion.
During his confirmation process, Holder said he would review the decision. In a written response to a question from Sen. Russ Feingold (D-Wis.), Holder said, “The Constitution guarantees due process of law to those who are the subjects of deportation proceeding. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General.”