The Corner

Holder Reverses Mukasey Ruling on Aliens’ “Right” to Counsel in Removal Cases

As we saw this morning, American citizens are not faring too well in the era of the Eric Holder Justice Department.  But aliens — especially those who are illegally in our country, or who commit crimes in our country — continue to thrive.

The Legal Times is reporting that Attorney General Holder has reversed the ruling by Attorney General Mukasey that aliens in immigration removal proceedings have no right to effective assistance of counsel.  As Mukasey explained back in January, in a well-reasoned 34-page opinion which carefully analyzed the pertinent law, the Sixth Amendment right to counsel applies only to criminal cases. Thus, it does not apply to removal under the immigration laws, which is civil, not criminal, in nature. Immigrants in removal cases are allowed to have counsel if they wish, but they must retain lawyers on their own, at no expense to the taxpayers. About 20 years ago, however, immigration judges (who tend to have been immigration lawyers before becoming immigration judges) fabricated a right to effective assistance of counsel for removable aliens under — you guessed it — the due process clause of the Fifth Amendment (that bottomless reservoir of “our values” which, of course, guarantees no such thing).

What was the practical effect of this? Well, the government would go through the burden of trying to remove from the country illegal aliens and criminal aliens; after losing and being ordered removed from the U.S., the aliens would then complain about the purported incompetence of their lawyers (the privately retained attorneys for whom the government and the public were in no way responsible); then, immigration judges would entertain those claims and, if persuaded that the private lawyer might have been ineffective, they would vacate the removal order, causing the government to bear the burden, and the public to bear the expense, of doing it all over again. And you wonder why no one ever gets deported?

AG Mukasey decided to end all this nonsense.  He ruled (as the AG is entitled to do in immigration matters) that aliens in removal proceedings had no right to effective assistance of counsel. In so ruling, he was following a number of federal appeals court decisions which held that there is no such right. Nevertheless, the Mukasey policy was not set in stone: If there were a particularly egregious case of lawyer error, the Justice Department reserved discretion to reopen removal proceedings. But for the vast majority of cases, it was absurd to penalize the American people for the alleged errors of a lawyer the removable alien had no right to have in the first place — a lawyer over whose performance the public had no control.

Today, AG Holder reversed AG Mukasey’s ruling, in a two-and-a-half page opinion that analyzes none of the pertinent law and does not address the constitutional issues. Remarkably, Holder does find time in his fleeting opinion to say that Mukasey failed to give ”a thorough consideration of the issues involved.” You’ll be shocked to learn that the move was wildly praised by the ACLU and the American Immigration Law Foundation.


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