A Move Back Toward Due Process
Attorney General Eric H. Holder Jr. has served the cause of justice by reversing a noxious last-minute order by the Bush administration that diluted the promise of a fair hearing for immigrants facing deportation.
Just days before President Obama was elected, Attorney General Michael B. Mukasey ruled that immigrants have no constitutional right to effective legal representation in their deportation hearings. The change scrapped a 20-year precedent in the handling of deportation hearings overseen by the Justice Department. It denied the right to a re-hearing to immigrants who lose their deportation proceedings because of the poor performance of an incompetent or unscrupulous lawyer.
Because the Sixth Amendment right to a lawyer applies only in criminal cases, and deportation is a civil action, the government is not required to provide a lawyer to assist an indigent immigrant. That denial of counsel regularly results in unfairness, and should be changed.
But the issue that confronted Mr. Holder was the tainting of removal proceedings by the mistakes of a privately retained attorney. Removal actions have a profound impact on an indivdual's liberty and suits for legal malpractice are not a practical or satisfying remedy.
In a three-page order negating Mr. Mukasey's decision, Mr. Holder suggested that it was improper to rush through such a major change in long-standing government policy without thoroughly considering the views of all interested parties. Mr. Holder also disagreed specifically with the notion of closing off one of the most common avenues for appealing deportation decisions.
"The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel," he said in a statement.
Mr. Holder has instructed immigration judges and the Board of Immigration Appeals to apply the legal standards in effect prior to Mr. Mukasey's mischief. The Justice Department will review the law with an eye toward formalizing a permanent new rule..
There was one unsettling contradiction in Mr. Holder's order, which appears to leave Justice Department lawyers free to argue in deportation cases at the federal appeals court level that there is no constitutional right to effective lawyers for immigrants. The attorney general should correct that.
Education for Liberation!
Peter S. Lopez ~aka: Peta
Sacramento, California, Aztlan
Yahoo Email: peter.lopez51@yahoo.com
http://anhglobal.ning.com/group/humanerightsagenda
http://groups.yahoo.com/group/Humane-Rights-Agenda/
http://groups.yahoo.com/group/NetworkAztlan_News/
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