Legal Commentary

Holder Vacates Mukasey Decision to Weaken Immigrants' Right to Fair Hearing

By TChris

The John Ashcroft-Alberto Gonzales Justice Department advanced an obvious agenda: expand federal executive branch power while limiting the ability of individuals to resist its exercise. On his last day in office, Michael Mukasey furthered that agenda by stripping immigrants of a right that the Board of Immigration Appeals has protected since 1988 and that seven federal courts of appeals recognize: the right to the effective assistance of counsel in immigration proceedings. As a matter of "administrative grace," Mukasey generously [sarcasm alert] granted immigration judges the discretionary power in exceptional cases to reopen a hearing and grant relief to an immigrant who was prejudiced by his attorney's ineffective representation, provided the immigrant complies with the burdensome new procedures and heightened standard of proof that Mukasey put in his way. As a failsafe measure to assure that an immigrant won't prevail if the Justice Department wants him gone, Mukasey's decision allowed the Department to carry out the deportation while the immigrant's request to reopen a hearing is pending.

Eric Holder's agenda has also been obvious: fix the mistakes that the Bush administration's Justice Department made while restoring its integrity. He advanced that agenda earlier this month by vacating Mukasey's decision and ordering immigration judges to apply the law as it existed before Mukasey messed it up. Holder also departed from a Bush administration tradition by initiating an administrative rulemaking proceeding that will allow the Department, acting transparently and with the benefit of public comment, to consider adopting a formal rule governing motions to reopen based on claims of ineffectiveness assistance.

Mukasey had the power to impose his will on immigration judges because Congress stacked the deck against immigrants seeking legal relief.

Immigration court is a strange creature in the context of the legal system. There are effectively no rules of evidence, no discovery, and under of Matter of Compean, no right to effective assistance of counsel. In the Immigration Court system, the Department of Justice makes the final decision on the outcome of each case, not the independent judiciary. The Attorney General can, and sometimes does, simply reverse the decision of the lower immigration courts, to suit his or her political agenda.

Unlike John Yoo's torture memo, Mukasey's legal reasoning is unconvincing but not specious, even if contradicts the holdings of seven of the ten appellate courts to decide the question. Yet the wisdom of Mukasey's decision does not depend upon the strength of his legal analysis. With a large majority of federal appellate courts and the long-standing precedent of the Board of Immigration Appeals recognizing the existence of a constitutional right, Mukasey's decision to take it upon himself to deny the right's existence was stunningly arrogant. A prudent Attorney General would protect a widely recognized constitutional right while asking the Supreme Court to resolve the issue. An Attorney General who wanted to broaden executive power while thwarting challenges to that power advanced his agenda by making the decision himself. Holder deserves credit for fixing another problem that the Ashcroft-Gonzales-Mukasey Justice Department left behind.

Full post as published by TalkLeft on June 14, 2009 (boomark / email).