USA IMMIGRATION NEWS

US Attorney General Rescinds Deportation Rule

Friday, 5 June 2009

Holding true to his word, Attorney General Eric Holder has recently withdrawn a decision issued by outgoing Attorney General Michael Mukasey that effectively removed due process in Immigration Court proceedings by eliminating the right to effective representation. Attorney General Holder had stated that he would review the Mukasey decision and that he disagreed with its reasoning.

Holder avowed at his confirmation hearings that he would re-examine Mukasey's decision, stating: "The Constitution guarantees due process of law to those who are the subjects of deportation proceedings. I understand Attorney General Mukasey's desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair."

The ruling, issued by former Attorney General Michael Mukasey days before he left office, could have potentially unraveled decades of legal precedent and severely restricted the right of immigrants to reopen immigration cases lost because of their lawyers' mistakes. Mukasey's decision held that an immigrant's claim of "ineffective assistance of counsel" based on lawyer error was not constitutionally protected and that immigration judges could choose to ignore such claims.

Mukasey's last-minute legal opinion affected many thousands of people facing deportation holding that these individuals have no legal or constitutional right to competent counsel in immigration proceedings. If left to stand, Mukasey's decision would have created years of confusion in the immigration and federal courts and would have resulted in potentially thousands of people being thrown out of the country without having had their constitutionally protected day in court.

Despite protests from prominent legal and civil rights organizations, Mukasey's ruling was issued after a curtailed decision-making process that did not allow sufficient time for many lawyers and legal organizations to respond to the ruling.

Holder's withdrawal of Mukasey's decision mandates that the Department of Justice will initiate rulemaking procedures on the right to relief for ineffective counsel in deportation proceedings. In the interim period, the decision ensures that the law will revert to the prior law, which provided an avenue for victims of ineffective counsel to reopen their cases.

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