A Question For Holder on Immigration

By TChris, Section Civil Liberties
Posted on Fri Jan 09, 2009 at 11:13:28 AM EST
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Do immigrants have the right to effective representation at removal hearings? Eric Holder should be asked that question at his confirmation hearing, in light of this:

On Wednesday, Attorney General Michael Mukasey issued a decision stating that immigrants in removal proceedings do not have a legal right to counsel, or to effective representation.
Mukasey’s interpretation is that immigrants facing deportation cannot petition to have their cases re-opened because of the errors or incompetence of attorneys. Rather, according to the attorney general, they can throw themselves at the mercy of the DOJ’s discretion.

[More....]

Mukasey’s slap at due process follows another undemocratic maneuver. He refused to allow meaningful public commentary on his plans to revoke the long-held right to appeal a case based on ineffective counsel.

Immigration law is complicated and highly specialized. An immigrant shouldn't be kicked out of the country because his lawyer didn't understand the law. If Holder doesn't commit to reversing the DOJ stance advanced by Mukasey, he doesn't deserve the job of Attorney General.

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A Question For Holder on Immigration | 16 comments (16 topical)

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From the NYT: (none / 0) (#1)
by sarcastic unnamed one on Fri Jan 09, 2009 at 12:08:59 PM EST

In explaining his ruling, Mr. Mukasey said that the Sixth Amendment right to a lawyer applied only in criminal cases and that deportation was a civil action.
He wrote that the due process clause, part of the 5th and 14th Amendments, applied in criminal and civil proceedings but that the guarantee of due process applied only to actions of government and not to actions by private individuals like an immigrant's lawyer.
"There is no constitutional right to counsel, and thus no constitutional right to effective assistance of counsel, in civil cases," he wrote.
Mr. Mukasey did leave open one avenue of appeal for illegal immigrants who have been wronged by their lawyers.
He said the immigration courts could allow an immigrant to reopen a case "as a matter of administrative grace" in cases of extreme lawyerly error that probably changed the outcome of the initial removal proceeding.
The 33-page opinion included detailed rules for reopening a removal order.

This part (none / 0) (#2)
by eric on Fri Jan 09, 2009 at 12:21:30 PM EST

He wrote that the due process clause, part of the 5th and 14th Amendments, applied in criminal and civil proceedings but that the guarantee of due process applied only to actions of government and not to actions by private individuals like an immigrant's lawyer.

Is nonsense. It is a deportation proceeding. That is the government. I am not sure if Mukasey really said this, or if it is bad reporting.

[ Parent ]

I'm not sure you're reading it right. (none / 0) (#4)
by sarcastic unnamed one on Fri Jan 09, 2009 at 01:18:22 PM EST

My reading says the deportation proceedings, as defined by our laws, are giving due process. That according to the law due process during deportation proceedings does not require that you have a lawyer.

In fact, I would suspect that most of the time it doesn't involve a lawyer. I certainly never had a lawyer when the legality of my presence was questioned during my travels in Central and South America, for example.

Because there is no constitutional due process requirement that you must be represented by a lawyer during deportation proceedings, if you do choose to get one, there is therefore no constitutional requirement that the one you hire be as good as Jeralyn or TChris.

Should we expect him to disregard the law?

[ Parent ]

last time i checked, (5.00 / 1) (#10)
by cpinva on Fri Jan 09, 2009 at 05:46:20 PM EST

I certainly never had a lawyer when the legality of my presence was questioned during my travels in Central and South America, for example.

neither location is a part of the united states. thus, our constitution and laws wouldn't apply.

mr. mukasey's "interpretation" is yet but another of the many tortured readings of the constitution by this administration, not soon enough consigned to the dustbin of history.

[ Parent ]

I just think it is (none / 0) (#7)
by eric on Fri Jan 09, 2009 at 02:22:22 PM EST

nonsense, not on the merits but because the statement itself is nonsense. You could disregard all state action if you confined the due process requirement to the relationship you have with your lawyer.

[ Parent ]

: Perhaps it was Mukasey's intent (none / 0) (#13)
by allimom99 on Sat Jan 10, 2009 at 01:46:53 PM EST

to open up this avenue of thought. After all, this crowd isn't well-known for their adherence to Constitutional principles now, are they? I, for one, would LIKE to hear Holder's response to this - I am not all that pleased with his appointment and really think a thorough examination of his outlook is in order.

[ Parent ]

Strikes this layman as a tireless search.. (none / 0) (#3)
by kdog on Fri Jan 09, 2009 at 12:35:44 PM EST

for loopholes to get out of doing the right thing on the part of Uncle Sam.

heh (none / 0) (#5)
by jimakaPPJ on Fri Jan 09, 2009 at 01:38:20 PM EST

Common Sense 1 - Cultural Sojourners 0

[ Parent ]

Cultural Sojourners 0 (5.00 / 1) (#8)
by jondee on Fri Jan 09, 2009 at 02:25:20 PM EST

What Crazy Horse said right after Custer stopped twitching.

[ Parent ]

: Question is (none / 0) (#9)
by jimakaPPJ on Fri Jan 09, 2009 at 04:49:34 PM EST

Who is the sojourner??

[ Parent ]

Common sense? (none / 0) (#6)
by kdog on Fri Jan 09, 2009 at 01:49:23 PM EST

Lets just say our senses may not be common, especially on this one...old friend.

[ Parent ]

Does anyone (none / 0) (#11)
by call me Ishmael on Fri Jan 09, 2009 at 08:02:14 PM EST

know what statute Mukasey claims to be interpreting? How can the prosecutor determine what is, and is not, a valid basis for appeal? Shouldn't that be up to the Courts and the legislature? I know that the Bush administration has gotten away with a lot of stuff like this but don't you think that this would be one thing that the Courts would push back on? After all, it is their power he is taking away (even without the civil liberties questions).

"complicated law" (none / 0) (#12)
by diogenes on Fri Jan 09, 2009 at 10:32:35 PM EST

The complicated law is understood by hearing officers. Most expensive immigration lawyers that you hire are paid to tell you the right paperwork/techniques to get green cards, etc, not to go to court to argue. If someone wants to start the "Undocumented immigrants legal defense fund" to help people with this, they are welcome to.

: So are you saying (none / 0) (#14)
by allimom99 on Sat Jan 10, 2009 at 01:50:55 PM EST

that prospective deportees SHOULDN'T have the right to competent counsel or even the opportunity to argue their case? I really want to know, and if not, why not>

[ Parent ]
: If you read (none / 0) (#15)
by TChris on Sat Jan 10, 2009 at 05:27:58 PM EST

federal appellate decisions that review immigration cases, you might come to a different conclusion as to whether immigration judges understand immigration law.

[ Parent ]

Due Process Right to Reasonably Effective Counsel (none / 0) (#16)
by Dave A on Sat Jan 10, 2009 at 10:23:44 PM EST

Mukasey's argument is a legal non-starter. Immigrants posses the right to reasonably effective counsel during immigration proceedings.

Everyone who practices law in the area knows that immigrants have been held not to enjoy the Sixth Amendment right to counsel which is embodied in the Court's decision in Strickland v. Washington.

However, immigrants do have the right to reasonably effective counsel under the due process clause in civil deportation proceedings. The due process right to counsel is found in the Court's decision in McMann v. Richardson. The due process right to counsel is not as rigorous as the Sixth Amendment right, but it still protects the proceedings from being reduced to a sham or farce due to an ineffective attorney.

The due process right to counsel does not turn on an immigraton attorney being a state actor. Instead it is the minimal level of due proces enjoyed by an immigrant given the importance of their interest in a fair hearing and the gravity of the sanction involved (deportation).

Mukasey cannot interpret the due process clause: he is not a federal court. His argument is a red herring which (1) uses a truism about the Sixth Amendment and (2)cites to irrelevant authority regarding state action.

It is axiomatic that the Constitution often applies in court proceedings even in the absence of state action. See Shelley v. Kramer (court cannot enforce racially restrictive home covenants even when there is no state action other than the court's enforcement of a private agreement).