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Immigrants at risk of deportation rely on their lawyers or accredited individuals for a proper defense. But when an attorney or nonlawyer commits errors or misrepresents their competence, clients have the right to appeal on the basis of ineffective counsel.
That right is absolutely necessary. No one would want their entitlement to a fair process compromised by an incompetent or unscrupulous lawyer. Yet, this is a far too common occurrence, as our paper regularly documents.
Despite that reality, Mukasey wants to reconsider this right. He also suggests that some sort of discretionary process by the Department of Justice (DOJ) and hurdles of standards can substitute for a proper defense.
The attempt to revoke this right and to penalize immigrants for an inadequate defense fundamentally departs from not only legal precedents but also a prior review. The American Civil Liberties Union (ACLU) points out that the Board of Immigration Appeals just a few years ago reconsidered issues around immigrants’ defense and chose to not overturn the fundamental right to a new hearing in cases of counsel error.
What is also troublesome is the short window Mukasey gave for public comment and legal briefs around this reconsideration. He quietly requested briefings in the middle of the summer from only to a small group of petitioners. Mukasey did not grant the November extension requested by the ACLU, the American Bar Association and a long list of organizations.
As the head of a Department already tarnished by a series of scandals, including the political appointments of immigration judges, Mukasey would be wise to preserve, not up-end, the right to a competent counsel.
Today in English