News Update - January 10, 2009

By Alan Lee, Esq.

Attorney General’s Decision Denies Aliens’ Suits to Reopen Based on Lawyer’s Ineffectiveness and that Aliens do not have Constitutional Right to Representation in Removal or Deportation Proceedings

In the waning hours of the Bush administration, his Attorney General, Michael Mukasey, issued a decision on January 7, 2009, Matter of Compean-Bengaly-JEC, that immigrants, asylum seekers, and all others in removal or deportation proceedings do not have a statutory or constitutional right to representation by a lawyer before being ordered deported. From this decision, it follows that immigrants and asylum seekers also do not have the right to complain or request a new hearing when their lawyer is incompetent or fraudulent. Only in certain extreme circumstances will cases be reopened. The Attorney General’s decision sets a precedent for all levels of the immigration courts. Because it is contrary to the prior operating procedures of the courts, immigrant advocates expect this decision to be appealed in the federal appeals court. There is also the possibility that the Obama administration will overturn the decision but not before many immigrants who are victims of ineffective counsel are ordered removed.

 


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2009 Alan Lee, Esq.

 

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