Holder Restores Legal Protections for Immigrants in Deportation Cases

A Border Patrol agent monitors the fence along the U.S.-Mexico border in Nogales, Ariz. Attorney General Eric H. Holder Jr. yesterday vacated a Bush-era ruling and restored legal protections for immigrants in deportation cases.
A Border Patrol agent monitors the fence along the U.S.-Mexico border in Nogales, Ariz. Attorney General Eric H. Holder Jr. yesterday vacated a Bush-era ruling and restored legal protections for immigrants in deportation cases. (2006 Photo By Khampha Bouaphanh -- Associated Press)
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By Spencer S. Hsu
Washington Post Staff Writer
Thursday, June 4, 2009

Attorney General Eric H. Holder Jr. yesterday overturned a Bush administration ruling in January that immigrants do not have a constitutional right to effective legal counsel in deportation proceedings.

In vacating the decision his predecessor, Michael B. Mukasey, issued two weeks before President George W. Bush left office, Holder restored one of the most common grounds cited by immigrants for appealing removal orders: that their attorneys were incompetent.

The nation's immigration courts are separate from the judicial branch and operate under the Justice Department, which makes the U.S. attorney general the final arbiter for immigration proceedings. Immigrants are not entitled to public defenders but can hire their own lawyers. Immigrants can appeal deportation rulings to the federal court system, and thousands have, relying on legal precedent established by the immigration courts in 1988 and reaffirmed in 2003.

However, during Bush's second term, the Justice Department argued in the federal courts that neither the Constitution nor any federal law or regulation "entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer," as Mukasey wrote.

The Bush Justice Department argued successfully in recent years against that right, winning decisions covering the U.S. Courts of Appeals for the 4th and 8th circuits. If there is no constitutional right to counsel in immigration cases, there is no such right to effective counsel, Mukasey ruled.

Holder's three-page decision restored immigration court procedures and legal precedents in place before January, but he added that "litigating positions of the Department of Justice will remain unaffected" -- leaving open the possibility that the government or future administrations might still continue to press such claims in federal courts, depending on the circumstances in the case. Holder also announced plans to initiate federal rulemaking to cover how immigration courts decide claims of ineffective legal representation, saying Mukasey's ruling did not thoroughly consider the issues involved.

"The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel, and the Department of Justice's rulemaking in this area will be fair, it will be transparent, and it will be guided by our commitment to the rule of law," Holder said.

Nadine Wettstein, director of the American Immigration Law Foundation's Legal Action Center, said in a statement that the advocacy arm of the nation's immigration law bar was "very encouraged that Attorney General Holder appreciates the importance of immigrants' rights in deportation proceedings."

Lee Gelernt, deputy director of the American Civil Liberties Union's immigrants' rights project, called the decision "an important first step" but added: "We think that if the attorney general is intending to ensure that immigrants have a right to reopen their deportation hearings where there has been an egregious mistake by their attorney, the Justice Department should not be simultaneously trying to limit that right in the courts."

H. Thomas Wells, Jr., president of the American Bar Association, said in a statement, "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 is important, and we applaud it."


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