Ruling Says Deportation Cases May Not Be Appealed Over Lawyer Errors
By JOHN SCHWARTZ
January 9, 2009
The New York Times
The Bush administration has issued a ruling that illegal immigrants do not have a constitutional right to effective legal representation in deportation hearings, closing off one of the most common avenues for appealing deportation decisions.
The ruling, by Attorney General Michael B. Mukasey, concerns three appeals by people ordered to be deported who said their cases had been hurt by mistakes by their lawyers. Mr. Mukasey wrote in an opinion released late Wednesday that “neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.”
Immigration courts operate within the Justice Department and are not part of the judicial branch, so Mr. Mukasey’s ruling has the effect of the highest immigration authority. Any challenge would have to take place in the federal appeals courts. Immigrant advocates said Thursday that they expected the ruling to be appealed.
A long line of decisions in the federal courts and the Board of Immigration Appeals, a unit of the executive branch that reviews the rulings of immigration courts, had found that immigrants whose lawyers had failed them could ask that their cases be reopened on constitutional grounds, including in a case, In re Assaad, decided by the Board of Immigration Appeals five years ago.
The Bush administration, however, has argued successfully in several more-recent cases in federal appeals courts that there is no constitutional right to have a deportation case reopened because of ineffective legal representation.
“The law was settled until the Bush administration came in,” said Lucas Guttentag, the director of the Immigrants’ Rights Project for the American Civil Liberties Union, one of several groups that had urged Mr. Mukasey to take more time to decide the matter.
Angelo A. Paparelli, an immigration lawyer who practices in New York and California, said it was “shocking and outrageous that the attorney general, in the twilight of his holding that position, reaches out and usurps from the Obama administration an opportunity to render a judgment to affirm that aliens in removal proceedings have truly robust constitutional protections.”
http://www.nytimes.com/2009/01/09/us/09immig.html?ref=us
