Legal News

Mukasey Limits Ineffective Assistance Challenge for Aliens

By Dan Slater

As one AG nominee prepares for what could be a rocky confirmation, the current AG is making his own waves.

On Wednesday, Michael Mukasey ruled that aliens have no constitutional right to challenge the outcome of their deportation hearings based on their lawyers’ mistakes. Here’s a report from the BLT blog, which has a link to Mukasey’s 34-page opinion. It’s binding on the nation’s 53 immigration courts and the Board of Immigration Appeals, which are overseen by the Justice Department’s Executive Office for Immigration Review.

The ruling, notes BLT, effectively scraps a 15-year-old precedent set in a case referred to as the Matter of Lozada. While aliens have no Sixth Amendment right to counsel, Lozada acknowledged their right to effective assistance under the due process clause of the Fifth Amendment.

“Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, 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,” Mukasey wrote.

Angelo A. Paparelli, an immigration lawyer, told the NYT that it was “shocking and outrageous that the attorney general, in the twilight of his holding that position, reaches out and usurps from the Obama administration an opportunity to render a judgment to affirm that aliens in removal proceedings have truly robust constitutional protections.”

Photo: Getty Images

Full post as published by Law Blog - WSJ.com on January 09, 2009 (boomark / email).