When immigrants face possible deportation, they don't have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don't have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud.
Immigrant advocates say a Justice Department ruling issued Wednesday by Muksasey could hurt thousands of immigrants seeking to stay in the U.S.
Immigrants fit the classic profile of fraud victims, says Nadine Wettstein of the American Immigration Law Foundation.
"They often don't have a lot of money, they're often very unsophisticated. And of course the people who prey on them expect that they're not going to be able to report them to the authorities because of the fear of being deported themselves," Wettstein says.
Wettstein says bad lawyers may not file all the necessary documents to prove a case, or may not inform a client of a hearing. When Layli Miller-Muro was a lawyer at the Board of Immigration Appeals, she remembers paging through asylum applications filed by one lawyer in particular and noticing something odd.
"The same wording, even the same typos," Miller-Muro notes. "It became clear that this attorney was lazy and had simply cut-and-pasted an asylum application he used before."
For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Bush administration has disagreed with that concept, and recently some courts upheld its view — with good reason, says former immigration official Jan Ting, now at Temple University.
"That's a can of worms," says Ting. "If you allow that argument, everyone who hires a lawyer is going to be able to argue that their lawyer didn't do a good enough job for them and they need to start all over again."
Ting says there is a public interest in making the nation's increasingly overburdened immigration courts more efficient. She says any measure that will limit the number of immigration appeals is a good thing.
"We have to deal with a very large number of immigration cases, it takes up an enormous amount of the government's resources, and we can't protract the litigation that these cases generate," Ting says.
The Justice Department declined an interview request, but in Wednesday's ruling Mukasey cited the need to balance the rights of immigrants with "the expeditiousness and finality of removal proceedings." Mukasey also said there simply can be no right to an effective lawyer where — as in immigration court — there's no right to any lawyer at all.
The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer's actions were "egregious," and if the agency believes the immigrant has a valid claim to avoid deportation. If that fails, a department spokesman says immigrants could ask a federal appeals court to re-open their case, though Lee Gelernt, of the ACLU, believes the ruling seeks to limit that option.
"What they've tried to do is say the agency has all this discretion, and for the court to reverse they would have to find an abuse of discretion," Gelernt says. "I think the practical effect is that you're going to have a hard time appealing it."
Gelernt says the ACLU and other groups plan to appeal the attorney general's new ruling, and to pressure the new Obama administration to overturn it.