Constitutional Law

Immigrants Can Reopen Deportation Cases If Effective Counsel is Denied, AG Holder Rules

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Updated: Only days before President Barack Obama took office, then-Attorney General Michael Mukasey issued an opinion finding that noncitizens have no right to counsel in deportation proceedings and hence can’t reopen their cases if private lawyers have inadequately represented them.

But on Wednesday Attorney General Eric Holder reversed that order and instructed the U.S. Department of Justice to begin drafting a new right-to-counsel rule. Although he didn’t reach the constitutionality issue decided by Mukasey in a 33-page opinion in January, Holder’s three-page ruling reinstates a 20-year precedent case decided by the Board of Immigration Appeals, Matter of Lozada, according to the Blog of Legal Times and the Associated Press.

A copy of the AG’s decision today (PDF) is provided by the BLT.

“The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel,” Holder said in a written statement Wednesday. “It is important that the American people have the opportunity to participate in formulating our procedures in this area.”

In a statement Thursday, ABA President H. Thomas Wells Jr. praised Holder’s action, saying, “It is fundamentally American to treat fairly those who come to our country, especially when their future and their freedom may be at stake. This decision by the attorney general will help ensure that immigrants who have been victimized by ineffective assistance of counsel have redress.”

The statement also noted the ABA’s position that substantive and procedural rights of applicants for immigration relief should be protected when their cases suffer because of incompetent representation.

“We are pleased to see the government initiate rulemaking procedures to evaluate the existing process,” the release states. “We hope that, ultimately, new guidelines will be issued that clearly uphold fundamental principles of fairness.”

In a press release, the American Immigration Lawyers Association welcomed the “restoration of due process in the Immigration Court system,” as required by the U.S. Constitution.

Additional coverage:

OC Immigration Attorney: “New Attorney General Holder vows to reexamine Mukasey Opinion regarding Lozada”

ABAJournal.com (Jan. 2009): “Noncitizens Have No Right to Counsel in Deportation Cases, Mukasey Finds”

Updated at 9:30 a.m. Thursday to add ABA statements.

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