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Holder Restores Right to Effective Counsel in Immigration Court

Attorney General Eric Holder today withdrew the controversial ruling by his predecessor that immigrants in deportation proceedings have no right to appeal an adverse decision based on their lawyer’s mistakes.

The immediate effect is to restore the right to re-open a case based on a claim of ineffective assistance of counsel, but Holder also said he will “initiate a new rulemaking proceeding for regulations to govern claims of ineffective assistance of counsel in removal proceedings.”

“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,” Holder said in a statement.

As I wrote in February, just two weeks before the inauguration of President Obama, former Attorney General Michael Mukasey ruled in a case called Matter of Compean that immigrants have no right to be represented by a lawyer, and no right to appeal a ruling based on a lawyer’s mistakes.

“Neither the Constitution nor any statutory or regulatory provision,” Mukasey wrote in early January, “entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.”

The ruling caused serious problems for immigrants who were entitled to remain in the country but had hired overburdened or simply incompetent lawyers who didn’t know the law, missed a critical deadline or failed to get their client’s full story.

Until Mukasey’s last-minute rule change, immigrants for the past 20 years had had the right to re-open a case if they could show that they were denied a fair hearing due to their lawyer’s mistakes.

Mukasey’s ruling outraged immigration lawyers struggling to represent clients who’d been mis-represented in the past. In a recent letter asking Holder to reverse the decision, the American Civil Liberties Union’s Immigrants Rights Project called the change “at odds with the vast majority of the courts of appeals and with ensuring fundamental fairness in immigration proceedings.”

Holder’s withdrawal of the decision means that for now, at least, the right to re-open a claim based on ineffective assistance of an attorney is restored.

Holder’s order, however, directs the Executive Office of Immigration Review to develop a new procedure “to evaluate the existing framework for making claims of ineffective assistance of counsel, to solicit public comment, and, if appropriate, to issue a final rule.”

In other words, the final outcome remains to be seen.

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