9 January 2009

Last minute changes to regulations, last minute political appointments, last minute purchases.  Outgoing presidents are notorious for them.  Particularly when one political party has lost to another in a presidential election, the outgoing president will seek to implement as many regulations and appointments as he can prior to final departure from office.  The outgoing president will also seek to implement these changes in ways that are not easily reversed by the new president.  For example, President Bush recently reclassified many political appointees at federal agencies as civil servant positions, a move designed to make these ideologues hard for Barack Obama to get rid of. 

In that same category of outgoing political moves, a new Bush Administration ruling by the U.S. Attorney General Michael Mukasey greatly reduces the current rights of appellants who have lost their immigration cases in the U.S. (administrative) immigration courts.

Generally speaking, a litigant in judicial proceedings in the U.S.A. has a right to "due process." Our concept of "due process" includes the idea that a judicial hearing  ought to be fair.  One component of a fair hearing is to have a lawyer who effectively represents the person.  The opposite of "effective assistance of counsel" (the ideal) is "ineffective assistance of counsel". 

In the monopoly game of life, we think that a person ought not "go to jail" merely because his lawyer failed.  If a person can show that they lost their case as the result of ineffective assistance of counsel, then they are usually entitled to a new hearing in which they can obtain better legal representation.  This doesn’t mean they win.  It doesn’t mean an asylum seeker doesn’t get deported.  All it means is that we think they ought to have a fair hearing before that decision is made. 

There are other parts to the analysis.  In legal analysis, there are finely tuned distinctions between the Fifth Amendment right to counsel and the Sixth Amendment right to counsel, and these are also included within the broader concept of due process.  But the bottom line is simply that a party who may be deprived of significant rights as the result of an adversiarial hearing is generally entitled to effective representation by counsel.  This doesn’t mean he’s entitled to the best lawyer that ever was, nor does it mean that he’s entitled to win.  It just means we want the hearing to be fair.  If it’s not, he gets a new hearing.   

The Bush administration argues that this has been abused by litigants who routinely claim they received ineffective assistance of counsel merely as a delaying tactic to deportation.  The Bush administration argues that as soon as a party loses, he files a petition for new hearing based on ineffective assistance of counsel, resulting in delay of the inevitable deportation. 

Well, duh.  In our legal system, a lawyer’s job is to represent his client.  It’s the job of a lawyer, in an adversarial system, to raise every possible avenue that may have merit, regardless of whether it may be a winning argument or not.  In my role as lawyer, it’s not my job to decide the merits of a case.  It’s my job to present my client’s best case and then to let the court or jury decide.  So, raising an allegation of ineffective assistance of counsel is really just part of the process to determine whether a person has had a fair hearing.  Any advocate would be crazy not to raise it.  It’s part of life, get over it. 

Not everyone agrees with me, however.  In a world where we hear of cases being reversed because of "technicalities," some people would think this qualifies as a technicality.  I "love" the way these words are bandied about.  Technicality.  It sounds as if the rules were nothing but minor trivia.  Let’s see.  My lawyer missed an important deadline so that my case got thrown out and I am deported.  Maybe it’s a technicality for someone sitting on a nice warm sofa, but it’s not a technicality for the person who perhaps is facing torture in their home country.   

The Attorney General, in a ruling that illustrated partisan political divide, ruled that a non-citizen has no right to effective assistance of counsel in a civil case.  The trouble is that hard cases make bad law.  There are undoubtedly cases where strikingly meritorious petitions for immigration are screwed up on account of ineffective assistance.  Under the reasoning of Michael Mukasey, if your lawyer showed up drunk at your immigration hearing, you’d have to move forward and, if he failed to introduce key evidence, you’d still have no grounds for a new hearing. 

Do we really want to create a rule of law that says people who may have had ineffective assistance of counsel are not entitled to a new hearing?  Because, you can’t really know if they had effective counsel or not until you examine the claim underlying the petition. 

The Attorney General’s opinion attempts to address this situation by saying the immigration courts could reopen a case, in their discretion, as a matter of grace.  However, there is already sharp lack of consistency among immigration courts, with some granting as many as 90% of their asylum cases while others deny as many as 90% of their asylum petitions.  To remove effective assistance of counsel from the category of fundamental right, in my opinion, moves down the slippery slope towards general lack of regard for due process and makes the immigration system into more of a sham.

This country was founded on the principle of rule of law rather than of men.  In my opinion, due process ought to be a fundamental component of any judicial proceeding which carries the imprimatur of the United States government. 

Obviously George Bush doesn’t think so, but I hope the Obama administration will reverse this Attorney General’s opinion as soon as he takes office. 

Here is a citation to the N.Y. Times article, which I commend for its excellent reporting of the crucial facts: 


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