On Jan. 7, 2009, barely 13 days before the transition to the Obama Administration, former Attorney General Michael Mukasey reversed years of legal jurisprudence guaranteeing due process for people in deportation proceedings, by declaring that "henceforth, immigrants, asylum seekers, and all others in removal (deportation) proceedings do not have any rights under statute or the Constitution to representation by a lawyer before they can be ordered to be deported. With the stroke of a pen, Mukasey swept aside years of legal precedents set forth by both the Board of Immigration Appeals and most federal courts, which have always operated on the premise that immigrants DO have the right to counsel in deportation proceedings.

Basis of decision

The former Attorney General opines that people in removal hearings have no right to counsel based on the following: first, because removal proceedings are civil in nature and not criminal, defendants have no Sixth Amendment right; second, defendants are not entitled to the Fifth Amendment's due process clause because the same only applies against the government and not against "a privately retained lawyer in removal proceedings." These pronouncements were declared by the former Attorney General, in a decision entitled, Matter of Compean, dated Jan. 7, 2009.

Ineffective counsel

Under the second justification, Mukasey believes that a hearing would be fundamentally fair even if the counsel were a complete idiot or a crook (i.e., incompetent or fraudulent) because the defendant does not have regulatory, statutory or constitutional rights to a lawyer anyway. In the same breath, however, the former Attorney General backpedals a bit and declares that immigration judges and the Board of Immigration Appeals may, "as a matter of sound discretion," reopen removal proceedings in "extraordinary cases" based on lawyer error. Mukasey then goes on to establish a new framework for the immigration judges and the Board of Immigration Appeals to apply for the consideration of what he terms deficient performance claims." This discretion, however, does not extend to the reopening of cases handled by "notaries" or "immigration consultants" unless the defendant was led to believe that they were legitimate lawyers.

Reaction

In a press release dated Jan. 8, 2009, the American Immigration Law Foundation (AILF) quite succinctly expressed the sentiment of a lot of immigrants and practicing immigrants' attorneys.

"We are outraged by this action," said Nadine Wettstein, the director of AILF's Legal Action Center. She went on to say, "It is yet another in a long line of midnight changes and an example of this Administration's (Bush) disregard for the fundamental principles of due process of law. It is also part of an ongoing attempt to eviscerate the federal courts' role in protection against Constitutional abuse by the immigration agency. We strongly disagree with the Attorney General's pronouncement and are confident that federal courts will reject this action."