Immigrants who are fighting civil charges — namely, deportation — do not have a right to legal counsel, the way criminal defendants do. Some hire a private attorney to fight their case. Which brings us to the news this week of a ruling by Attorney General Michael Mukasey that has some groups outraged.
The ruling makes it harder for immigrants to appeal a deportation on the grounds that a hired lawyer mishandled the case.
The American Immigration Law Foundation (the legal arm of AILA, an association of immigration attorneys) blasted the decision as yet another swipe at due process during the last days of the Bush administration.
I spoke with AILF’s Nadine Wettstein to find out more. The Sixth Amendment limits the right of legal counsel to criminal proceedings — No dispute there, she said. This controversy centers on the Fifth Amendment’s right to a fair hearing. The Board of Immigration Appeals traditionally followed court decisions known as Lozada and Assad, saying immigrants had a right to counsel under the Fifth Amendment’s due process clause. So previously, if your lawyer was ineffective, that could form the basis of an appeal, or a “motion to reopen” your case, Wettstein said. Now, cases will be reopened only at the government’s discretion.
“The attorney general is trying to say: ‘this is entirely our decision, the courts have nothing to do with this, it’s up to us,’” she said.
And what’s the real world effect? Immigration courts are rife with stories of fraudulent and bad lawyering. “These people are very easy to victimize, and so there are a lot of victims,” Wettstein said. Beyond that, the stakes are high. If an attorney fails to notify a client about a court appearance or a removal order, that person might go years without realizing they’ve been ordered to leave the country.
Some defend the AG’s decision for clarifying the rules and addressing a common stalling tactic.
How is it that the attorney general gets to decide this, anyway? Mukasey’s decision was made under a little-used immigration regulation that allows the attorney general to review and overrule a decision by the Board of Appeals, Wettstein said.
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