Holder Recognizes Importance of Fairness in Immigration Proceedings

Attorney General Holder took an important step in the right direction yesterday, vacating Attorney General Mukasey’s ill-considered midnight decision that deprived immigrants of an important guarantee of due process. Just days before he left office, Mukasey issued a legal opinion that stripped immigrants of the right to reopen immigration cases lost due to their lawyer’s mistakes.

Civil rights and immigration groups, including the ACLU, had urged Holder to vacate and reconsider Mukasey’s decision that dramatically limited the right of immigrants to obtain a fair hearing on whether they are legally eligible to remain in the U.S.

The consequences for immigrants of Mukasey’s decision could have been severe. Many immigrants, including long-time permanent residents with U.S. citizen children and refugees who fear persecution, have legitimate claims to eligibility to remain in the United States. But immigrants are especially vulnerable to inadequate representation by incompetent or unscrupulous lawyers because many lack fluency in English or do not have an understanding of complex U.S. court proceedings. Under Mukasey’s decision, immigrants might be deported due to mistakes of an incompetent attorney, even when they had a legal basis for remaining in the United States.

In his decision, Holder recognized that immigrants are entitled to fair proceedings. We hope that this indicates that Department of Justice attorneys will no longer contend in court that immigrants have no constitutional right to a proceeding untainted by errors of an incompetent attorney.

Holder also acknowledged in his decision that there must be a fair and open process when the Attorney General decides to make dramatic changes in the practice of the immigration courts.

Mukasey issued his decision after a very brief process that did not permit many interested groups to weigh in on what was a major change to established law. Holder has indicated that he believes that “all interested parties” must be given “a full and fair opportunity to participate” before such decisions are made.

Holder plans to continue to consider whether additional protections are necessary to address the problem of incompetent attorneys and intends to solicit comments from the public on any proposed rules. The ACLU encourages Holder to adopt rules that are consistent with protecting the integrity and fairness of immigration proceedings.