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US AG rules aliens cannot challenge deportation for ineffective legal assistance

[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]
The American Civil Liberties Union (ACLU) [advocacy website] criticized [press release] Mukasey's ruling, calling it, "a dangerous move away from the U.S. tradition of fairness and due process." American Bar Association (ABA) [organization website] President H. Thomas Wells, Jr. also condemned [press release] the decision, saying, "The ABA strongly believes that the substantive and procedural rights of applicants for immigration relief should be protected when they are victimized by the ineffective assistance of counsel."

In August, Mukasey issued an order [text, PDF] requesting briefs from interested parties on whether the ineffective assistance of counsel right should be reversed. Briefs were originally due in September, but Mukasey extended the deadline [order, PDF] until October to allow parties more time to prepare their responses. The ACLU, ABA [letters, PDF], and several other organizations submitted letters arguing that the right should not be reversed and that there was insufficient time to prepare briefs.

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