The Bush administration strikes again. The latest in its series of last-minute policy changes comes from the Department of Justice. In a ruling issued Wednesday, Atty. Gen. Michael B. Mukasey wiped out decades of court opinions and Board of Immigration Appeals practice, determining that noncitizens do not have a constitutional right to challenge their deportation based on incompetent legal representation. In practical terms, this means that if an attorney does not show up for an important hearing, fails to file crucial briefs, does not call relevant witnesses or advise his client that he or she is due in court -- any of which can lead to a judgment for deportation -- that's just too bad.
Only criminals are guaranteed the right to an attorney by the 6th Amendment, Mukasey noted, and removal hearings are civil procedures. Therefore, as privately retained attorneys are not agents of the state,the government is not obliged to consider a deficient performance as grounds for reopening a deportation proceeding. He left room, however, for a judge's discretion if an attorney's work was so deficient that it clearly changed the outcome.
This is legal sophistry. Removal hearings are civil proceedings, but the potential severity of their consequences and the depth of government involvement make them far more similar to criminal proceedings than to lawsuits over money or small-claims skirmishes. Immigrants and asylum-seekers often are arrested and detained by the government before a hearing, and if deportation is ordered, they are subject to forcible removal by the government. Legal and illegal immigrants facing deportation stand to lose jobs and property and, worse, to be exiled from husbands, wives and children. Asylum-seekers who are deported to their home countries face persecution and torture, and U.S. citizens mistakenly ensnared in immigration dragnets -- as occasionally happens -- face the particular horror of banishment from their homeland. The Justice Department should be moving toward more legal protections, not less.
Mukasey's successor might be able to reverse this ruling, but the most prudent way to proceed is for Congress to step in. The Immigration Nationality Act says that people in removal proceedings have the "privilege" of being represented by counsel, and that was generally conceded to be a right. But since the Bush administration found that expediency trumps fairness, lawmakers should prevent any future administration from doing the same and firmly establish the right to open trials, legal counsel and due process for citizens and immigrants alike.