Bush Rule Bolstering Deportations Is Withdrawn

Bush Rule Bolstering Deportations Is Withdrawn

By John Schwartz
The New York Times, June 3, 2009

Attorney General Eric H. Holder Jr. on Wednesday reversed a Bush administration ruling that had weakened the ability of immigrants facing deportation to argue that their lawyers did a bad job.

The original order, issued just days before the inauguration of President Obama, held that immigrants did not have a constitutional right to effective lawyers in their deportation hearings. That 11th-hour decision abruptly closed off one of the most common avenues for appealing deportation decisions.

Because immigration cases are classified as civil litigation, people facing deportation do not have the same right to be represented by a lawyer that criminal defendants have. But before the Bush administration, a long line of legal opinions allowed immigrants whose lawyers had performed poorly to ask that their cases be opened on constitutional grounds. In 2003, the Board of Immigration Appeals, a part of the executive branch that reviews the rulings of immigration courts, reaffirmed that right.

The Bush administration, however, successfully argued in several federal appeals court cases that there was no constitutional right to have a case reopened because of ineffective legal representation.

The Bush administration order, issued by Michael B. Mukasey, then the attorney general, concerned three deportation cases known collectively as Matter of Compean, after the name of one of the people facing removal, Enrique Salas Compean.

In Wednesdays three-page order withdrawing the former attorney generals decision, Mr. Holder suggested that the original order did not follow proper government procedure. The process followed by the Bush administration, he wrote, did not thoroughly consider all the issues involved, particularly for a decision that changed a long-standing process that had been reaffirmed by the appeals board.

Wednesdays order called for a thorough review of the law in such cases, and for a period of public comment that could lead to a new rule.

'The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel,' Mr. Holder said in a statement accompanying the order, 'and the Department of Justices rule making in this area will be fair, it will be transparent, and it will be guided by our commitment to the rule of law.'

Immigration courts and judges are part of the Justice Department, and the decisions of those judges can be appealed, under some circumstances, to the federal courts. Mr. Holders order instructs immigration judges and the Board of Immigration Appeals to apply the legal standards that were in effect before Mr. Mukaseys order until a final rule is devised.

But Mr. Holder said Justice Department lawyers could continue to argue in deportation cases at the federal appeals court level that there is no constitutional right to effective lawyers for immigrants. Lee Gelernt, a lawyer for the American Civil Liberties Union, applauded the overall decision as a good beginning to restoring the legal rights of immigrants, though he criticized Mr. Holder for applying it only to immigration judges and not Justice Department lawyers.

That aspect, Mr. Gelernt said, threatens to continue 'a troubling legacy of the Bush administration.'

But Jon Feere, a legal policy analyst for the Center for Immigration Studies, said that restoring the ineffective counsel rule would 'give aliens one too many bites at the apple' and could be used by immigration lawyers as a delaying tool.

'If this is going to result in people remaining in the country for years and years on end,' Mr. Feere said, 'we really have to question whether or not our immigration system is meeting the public interest of finality.'


Holder overturns Bush immigration order
The CNN News, June 3, 2009

Washington, DC — Attorney General Eric Holder overturned on Wednesday an order by the Bush administration that made it more difficult for defendants to appeal the rulings on their immigration cases, Holder's office announced.

The order, enacted by former Attorney General Michael Mukasey 13 days prior to the end of then-President George W. Bush's term, limited immigrants' efforts to reopen their cases by claiming they had ineffective assistance of counsel.

The order and its abolishment focus on whether non-citizens have a constitutional right to effective counsel in deportation cases.

'At the end of the day it's important to remember that aliens aren't granted the same constitutional protections as are granted a U.S. citizen,' said Jon Feere, legal policy analyst at the Washington-based Center for Immigration Studies.

'Basically we're talking about a difference in due process standards and that's not really up for debate.'

The elimination of the order could place a heavier burden on the immigration court system because appeal processes would take more time, Feere said. He added that the order did not inhibit immigrants from appealing on the basis of ineffective counsel; it set a higher standard of proof.

But Lee Gelernt, deputy director of the American Civil Liberties Union's immigrants' rights project, argued that whether defendants met those 'exceedingly high standards' was at the discretion of the Justice Department. Repealing the order means immigrants have the right to have their cases reopened when they argue they were unjustly served by their attorney, said Gelernt.

'This is going to be potentially an enormous benefit to countless immigrants and their families that have been taken advantage of by incompetent attorneys,' said Gelernt, who helped write a legal brief to Holder asking him to overturn the order.

Gelernt said that immigrants do have a constitutional right to effective counsel, but its not certain what stance Holder and the attorneys at the Justice Department will take from here on. Although Holder vacated the order, he did not replace it.

Holder has handed that task to the Executive Office of Immigration Review, and wants the office to ask for the public's input, according to a news release.


Precedent Reinstated In Deportation Cases
Holder Says Immigrants Can Appeal Removal Orders Over Lawyer Errors
By Spencer S. Hsu
The Washington Post, June 4, 2009

Justice Dept. shifts on voting, deportation
By Ben Conery
The Washington Times, June 4, 2009