Aliens Lose Right to Challenge Deportation Based on Mistakes

Monday, January 12, 2009

Attorney General Michael Mukasey has issued a 34 page opinion (PDF), overturning a 15-year old precedent allowing illegal aliens to make appeals on the basis that their case was weakened by their lawyers’ ineptitude or errors. Immigration courts must defer to Mukasey’s legal opinion. Although the Constitution’s 6th amendment does not guarantee the right to counsel for aliens, the 5th amendment’s right to due process previously protected aliens’ rights to appeal based on ineffective counsel. Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, commented, “There’s been a longstanding constitutional right recognized by the agency to obtain a new hearing due to counsel error…. The attorney general has now abruptly eliminated that constitutional right.” Mukasey preserved a little wiggle room in his statement, saying that, “egregious” errors by counsel could “justify allowing the Board (of Immigration Appeals) to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings.”

Matters of Compean, Bangaly, et al. (PDF) (by Michael Mukasey, Office of the Attorney General)
Board of Immigration Appeals (Department of Justice)


Leave a comment