In a highly controversial opinion, the U.S. Attorney General, Michael Mukasey, has issued a decision that declares that immigrants have no Due Process right to effective assistance of counsel. This ruling means that immigrants have no “right” to seek redress when their immigration trial was unfair because their attorney or representative was incompetent or acted fraudulently.
Mukasey, in Matter of Compean, 24 I&N 710 (A.G. 2009), found that immigrants have no right to effective assistance of counsel because they have no right to an attorney under the Constitution or by statute. The decision completely demolishes decades of precedent holding that immigrants have the due process right to effective assistance of counsel in order to ensure that they receive a fair hearing.
Assuring a fair hearing in removal proceedings is critical because of the grave consequences for immigrants ordered removed from the United States. Indeed, immigrants facing removal often face tremendous hardships, including being separated from their family, work, and society; being sent to a country where they may be persecuted based on political, religious, racial or other reasons; or being sent to a country where they will likely live in poverty because of a lack of educational or economic opportunities. Moreover, because of the complexities of the immigration laws, and language, cultural, educational, and financial barriers, immigrants often are poorly suited to address the charges against them in removal proceedings without competent counsel.
The new decision by Mukasey will disadvantage immigrants fighting to remain in the United States. While the Attorney General’s decision does not deny immigrants the opportunity to ask for relief when their representation was incompetent, it makes clear that it is solely the government’s option to decide when such relief should be granted. The decision holds that “the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.”
The Bush administration, including Mukasey, have only two weeks left before President Elect Obama and his cabinet assume their positions. Mukasey could have left the Compean decision for an opinion by the incoming Attorney General. Instead, he decided to continue a trend by the Bush administration to erode due process rights.
The Compean decision will be debated in the Federal Circuits. I predict that, eventually, the in-coming Attorney General, Eric Holder will step in and withdraw Mukasey’s opinion, because it was wrongly decided. Until that time, immigrants will have a much more difficult time seeking the reopening of a removal decision.
The Long Beach immigration attorneys at Smith & Garg, PC are experienced in all aspects of immigration law. Please contact us if you are facing removal or have any other immigration issue.
3 responses so far ↓
1 Rachel // Jan 14, 2009 at 6:13 pm
John,
Nice post on a pretty controversial decision. I’m not sure I agree entirely that the holding “completely demolishes decades of precedent.” The circuit courts were fairly split on this exact issue - and the ones that have held that there is a constitutional right to effective assistance of counsel seemed to do so on different grounds, while applying different standards in terms of what the alien has to show in order to prevail on an inneffective assistance claim. You’re right; however, that the timing of all this is fishy, with the administration on its way out. I think the more pressing question is whether the AG had the authority to analyze and rule on an issue of constitutionality at all - a question I’m sure will be raised. And because an agency’s interpretation of constitutional questions are not subject to Chevron deference, I suppose someone could (and predict someone will) raise the issue again, if they’re in one of the circuit courts that has found there to be a constitutional right to effective counsel. They wouldn’t necessarily need to wait for the new AG to act. Just a thought.
2 admin // Jan 14, 2009 at 7:09 pm
I like your comments, Rachel. I think that the Attorney General’s purpose in writing this decision is to try to eliminate, once and for all, the alien’s “right” to question a government ruling on a request to reopen based on inefficient assistance of counsel. While the Circuit Courts are split on several issues, we, as immigration practitioners, have long fought to reopen on this issue, even before Matter of Lozada was decided. Fortunately, I think that the Attorney General’s last minute crusade on the subject will not stand. Attorneys do not want to rely solely on the government’s “administrative grace” when seeking to help a client who clearly has not had a fair administrative hearing due to incompetent counsel. Thus, I anticipate some heated litigation on the issue, and I think the new Attorney General may even scrap the decision.
3 Attorney General Vacates Decision in Matter of Compean // Jun 3, 2009 at 3:07 pm
[…] General Eric Holder today withdrew the decision issued by former Attorney General Mukasey in Matter of Compean, Bangaly & J-E-C, 24 I&N […]
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