John Valdez’s Legal Blog

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.