[JURIST] US Attorney General Michael Mukasey [official profile; JURIST news archive] on Wednesday ruled [opinion, PDF] that aliens may no longer challenge deportation hearings based on ineffective assistance of counsel. Mukasey's opinion, which is binding on immigration courts and the Board of Immigration Appeals, holds that immigrants have no constitutional right to a new deportation hearing if their lawyers make mistakes. This ruling overturns precedent set in 1988 in Matter of Lozada [opinion, PDF], which held that although aliens have no Sixth Amendment right to counsel in deportation hearings, they do have a right to effective assistance of counsel under the Due Process clause of the Fifth Amendment. Mukasey wrote:

Aliens in removal proceedings ... have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada and Matter of Assaad are inconsistent with this conclusion, those decisions are overruled. [citations omitted]