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Posted Saturday, January 10, 2009    

Ruling Says Deportation Cases May Not Be Appealed Over Lawyer Errors

By JOHN SCHWARTZ                                                                      

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.
michael b mukasey
Michael B. Mukasey
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.”
Immigrant advocates criticize a Bush administration move.

The Obama administration could overturn the Mukasey decision, but Mr. Paparelli suggested that “thousands of people may be ordered removed” before Mr. Mukasey’s successor might address the matter. Nick Shapiro, a spokesman for the Obama transition team, said, “President-elect Obama will review all 11th-hour regulations once he is president.”

Kris W. Kobach, a law professor at the University of Missouri, Kansas City, who was a counsel on immigration law to John Ashcroft when he was attorney general, called the ruling “a balanced opinion” based firmly in the law and in the powers of the attorney general. “This opinion is not a dramatic or radical reshaping of the rules governing immigration appeals,” Mr. Kobach said.

“This represents a tinkering with the requirement to reopen, in order to reduce frivolous motions.”

Accusations of ineffective counsel, he said, are often used as a delaying tactic. “The ways in which this opinion ratchets up the threshold are eminently reasonable,” he said.

More often, immigration experts say, poor work by lawyers is a sad fact of life. The United States Court of Appeals for the Ninth Circuit said in an opinion last year that all too often “vulnerable immigrants are preyed upon by unlicensed notarios and unscrupulous appearance attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation.”

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.

Mr. Guttentag of the A.C.L.U. said the discretion given to the immigration courts could make review by the federal courts more difficult because in such cases the immigration agency argues that its discretionary acts are not reviewable.

Copyright 2009 The New York Times Company. Reprinted from The New York Times, National, of Friday, January 9, 2009.
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