NEW YORK – In a radical departure from years of legal precedent, Attorney General Michael Mukasey is considering ending the practice of allowing immigrants to reopen cases that they lost because of their lawyers' mistakes or incompetence. Mukasey announced that he was considering the issue late this summer and then imposed the unrealistic deadline of October 6 for interested parties to submit briefs, preventing organizations opposing the change, including the American Civil Liberties Union and the American Bar Association (ABA), from providing a meaningful response.
"It is remarkable that the attorney general would refuse to give the legal community sufficient time to respond to a change that would so dramatically break from fairness and due process," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt. "There is absolutely no reason why the justice system should penalize anyone, including immigrants, for the harm done by incompetent or unscrupulous attorneys."
On August 7, Mukasey instructed that any briefs responding to the proposed reversal of the "ineffective assistance" right be submitted by Sept. 15. After many organizations and lawyers protested that this provided insufficient time to respond to such major legal and policy issues, he extended the deadline a scant three more weeks.
Though the U.S. Department of Justice has also proposed new rules that would give the department more latitude to punish incompetent immigration lawyers, organizations from the entire range of the political spectrum say that penalizing attorneys is not a substitute for the right to competent counsel.
"It can never be considered a fair process when you lose your case because your lawyer missed a deadline or made some other egregious error," said Gelernt. "Punishing your lawyer does nothing for you while you're on your way to being deported."
Mukasey's orders as well as letters to Mukasey from the ACLU, ABA, the American Immigration Law Foundation and numerous partners at some of the country's most prestigious law firms opposing the change or objecting to insufficient time allotted for submitting briefs are available online at: www.aclu.org/immigrants/gen/37064res20081007.html