[JURIST] US Attorney General Eric Holder [official website] on Wednesday vacated [order, PDF; press release] an order [text, PDF] by former attorney general Michael Mukasey [JURIST news archive] that had denied those facing deportation the right to challenge immigration decisions based on ineffective assistance of counsel claims. Mukasey's order had held that the Fifth Amendment [LII backgrounder] right to effective assistance of counsel did not extend to those facing deportation. Holder vacated the order without specifically addressing the constitutional points, saying that such a decision should be made only after a period of public comment and a more formal rule-making procedure. Holder ordered the Executive Office of Immigration Review [official website] to consider the issue, solicit comment, and make a rule on the matter if appropriate:
The integrity of immigration proceedings depends in part on the ability to assert claims of ineffective assistance of counsel, and the Department of Justice’s rulemaking in this area will be fair, it will be transparent, and it will be guided by our commitment to the rule of law… It is important that the American people have the opportunity to participate in formulating our procedures in this area, and this new process will ensure they do.
Both the American Civil Liberties Union (ACLU) and the American Immigration Lawyers Association (AILA) [press releases] voiced support for Holder's decision.
The administration of US President Barack Obama has taken several recent steps to distance itself from immigration policies of the previous George W. Bush administration. In May, Obama proposed a budget that would cut funding [JURIST report] for the State Criminal Alien Assistance Program (SCAAP) [program website], a program which provides for the incarceration of illegal immigrants. In April, Homeland Security Secretary Janet Napolitano appointed former federal prosecutor Alan Bersin [JURIST report] as assistant secretary for international affairs and special representative for border affairs to oversee illegal immigration and anti-crime efforts along US borders. In February, the Cardozo School of Law summarized the Bush administration immigration policies as ineffective [JURIST report].