Posted on June 5, 2009

Precedent Reinstated in Deportation Cases

Spencer S. Hsu, Washington Post, June 4, 2009

Attorney General Eric H. Holder Jr. yesterday overturned a Bush administration ruling in January that immigrants do not have a constitutional right to effective legal counsel in deportation proceedings.

In vacating the decision his predecessor, Michael B. Mukasey, issued two weeks before President George W. Bush left office, Holder restored one of the most common grounds cited by immigrants for appealing removal orders: that their attorneys were incompetent.

The nation’s immigration courts are separate from the judicial branch and operate under the Justice Department, which makes the U.S. attorney general the final arbiter for immigration proceedings. Immigrants are not entitled to public defenders but can hire their own lawyers. Immigrants can appeal deportation rulings to the federal court system, and thousands have, relying on legal precedent established by the immigration courts in 1988 and reaffirmed in 2003.

However, during Bush’s second term, the Justice Department argued in the federal courts that neither the Constitution nor any federal law or regulation “entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer,” as Mukasey wrote.


Holder’s three-page decision restored immigration court procedures and legal precedents in place before January, but he added that “litigating positions of the Department of Justice will remain unaffected”–leaving open the possibility that the government or future administrations might still continue to press such claims in federal courts, depending on the circumstances in the case. Holder also announced plans to initiate federal rulemaking to cover how immigration courts decide claims of ineffective legal representation, saying Mukasey’s ruling did not thoroughly consider the issues involved.


The Obama Justice Department broke with two Bush-era approaches to citizenship and immigration this week, rejecting a Georgia system to verify the eligibility of voters on grounds that it hurt minorities and expanding the right of illegal immigrants to appeal their deportations.

On Wednesday, Attorney General Eric H. Holder Jr. reversed an order by his predecessor, Michael B. Mukasey, and bolstered the legal rights of immigrants facing deportation, saying that immigrants can fight orders to leave the U.S. on the grounds of poor legal representation at their deportation hearings.

That decision was announced two days after the Justice Department banned Georgia from using a system to verify that voter registrants are U.S. citizens, saying it discriminated against racial minorities. In doing so, the Justice Department overruled a local election decision for just the second time since Mr. Obama took office, in this case by ruling on the side of those who want to expand voter access and against Georgia lawmakers who said voter fraud was the bigger danger.

“I just think it is an outrageously stupid decision,” Hans A. von Spakovsky, a former career Justice Department lawyer who worked on voting-rights issues and is now a visiting legal scholar at the conservative Heritage Foundation, said of the Georgia case. “I still can’t believe they would do something this dumb.”


Arizona and Georgia are among the nine states, along with parts of seven others, that the landmark 1965 Voting Rights Act requires to receive permission from the Justice Department before making changes to voting procedures.


The Obama administration recently defended that part of the Voting Rights Act, known as Section 5, in a case in front of the Supreme Court, arguing that it is still necessary to prevent voter discrimination.

The rulings also were made a week after The Washington Times reported that Justice Department political appointees reversed career lawyers and dropped a voting-intimidation case it already had won against members of the New Black Panther Party.

Mr. von Spakovsky said the differences in the Justice Department’s handling of the Arizona and Georgia cases shows how arbitrarily the Voting Rights Act is applied, based on nothing more than the administration in power.