Ineffective Counsel not Grounds for Appeal

Attorney General Mukasey recently ruled that undocumented immigrants cannot appeal an immigration court hearing on deportation based on ineffective counsel. He stated that because deportation hearings are a civic matter, not criminal, their constitutional right to effective counsel does not apply. The New York Times reports:

The Bush administration has issued a ruling that illegal immigrants do not have a constitutional right to effective legal representation in deportation hearings, closing off one of the most common avenues for appealing deportation decisions.

The ruling, by Attorney General, concerns three appeals by people ordered to be deported who said their cases had been hurt by mistakes by their lawyers. Mr. Mukasey wrote in an opinion released late Wednesday that “neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.”

Immigration courts operate within the Justice Department and are not part of the judicial branch, so Mr. Mukasey’s ruling has the effect of the highest immigration authority. Any challenge would have to take place in the federal appeals courts. Immigrant advocates said that they expected the ruling to be appealed.

In explaining his ruling, Mr. Mukasey said that the Sixth Amendment right to a lawyer applied only in criminal cases and that deportation was a civil action. He wrote that the due process clause, part of the 5th and 14th Amendments, applied in criminal and civil proceedings but that the guarantee of due process applied only to actions of government and not to actions by private individuals like an immigrant’s lawyer.

“There is no constitutional right to counsel, and thus no constitutional right to effective assistance of counsel, in civil cases,” he wrote.