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AG Holder: Uphold Immigrants' Right to Counsel

Caroline Cincotta,
Immigrants' Rights Project
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February 6, 2009

In an amicus brief submitted to Attorney General Holder today, the ACLU asked Holder to vacate and reconsider a legal opinion issued by Attorney General Mukasey that stripped immigrants of the right to reopen cases they’ve lost due to their lawyers’ mistakes. In the waning days of the Bush administration, Attorney General Mukasey issued this last-minute decision curtailing immigrants’ right to due process, increasing the likelihood that immigrants who are legally eligible to remain in the United States will be deported due to immigration decisions that are based on the mistakes of an incompetent attorney rather than on the facts or the law.

Attorney General Mukasey’s decision was a major shift from what had been the practice in both the immigration courts and federal courts of protecting the due process rights of immigrants. Due process prohibits deporting an immigrant simply because her lawyer had violated the duty to provide effective representation through fraud or incompetent mistakes. Existing law had clearly recognized that principle and provided protection that the Bush Administration has tried to eliminate with the Mukasey decision. Due process protection is especially important for immigrants because their limited English-language skills and lack of knowledge of the U.S. legal system can make them particularly vulnerable to unscrupulous and incompetent attorneys.

We are very hopeful that Attorney General Holder will vacate Mukasey’s opinion and reconsider it, as he has made it clear that he understands that due process demands that immigrants receive a fair hearing. In his confirmation hearings, he indicated, in response to questions from Senator Hatch (PDF) and Senator Feingold (PDF), that he is willing to reexamine Mukasey’s decision because “[t]he Constitution guarantees due process of law to those who are the subjects of deportation proceedings.” We have therefore asked that Attorney General Holder quickly exercise his authority to ensure that this parting insult to due process from the Bush administration not be allowed to stand.

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