ACLU Asks Holder To Undo Mukasey Ruling Denying Immigrants' Protection From Lawyers' Mistakes

February 6, 2009 12:00 am

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NEW YORK – In a friend-of-the-court brief submitted to Attorney General Eric Holder today, the American Civil Liberties Union asked him to withdraw and reconsider a ruling that denies immigrants legal protection from their lawyers’ incompetence.

The ruling, issued by former Attorney General Michael Mukasey days before he left office, overturns years of legal precedent and severely restricts the right of immigrants to reopen immigration cases lost because of their lawyers’ mistakes. Mukasey’s decision wrongly held that an immigrant’s claim of “ineffective assistance of counsel” based on lawyer error was not constitutionally protected and that immigration judges could choose to ignore such claims.

“We call on Attorney General Holder to immediately withdraw and reconsider this misguided ruling that puts countless innocent immigrants at risk of being deported through no fault of their own,” said Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project. “Part of what ensures the rule of law is that the constitutional protections of fairness and due process apply to everyone. Immigrants are entitled to those same protections.”

In response to questions presented at his confirmation hearings, Holder stated that he would “reexamine” Mukasey’s Compean decision. Holder said: “The Constitution guarantees due process of law to those who are the subjects of deportation proceedings. I understand Attorney General Mukasey’s desire to expedite immigration court proceedings, but the Constitution requires that those proceedings be fundamentally fair. For this reason, I intend to reexamine the decision should I become Attorney General.”

“Attorney General Holder understands that due process demands a fair hearing and that incompetent or unscrupulous lawyers violate that principle. Due process prohibits deporting an immigrant because her lawyer was asleep at the switch or violated the duty to provide effective representation,” said Lucas Guttentag, Director of the ACLU Immigrants’ Rights Project. “Existing law recognized that principle and provided a protection that the Bush administration tried to eliminate.”

Mukasey’s ruling was issued on January 7, 2009 after a truncated decision-making process that did not allow sufficient time for many lawyers and legal organizations to prepare and submit legal briefs on the issue. Although the rushed process drew protests from prominent legal and civil rights organizations, Mukasey did not significantly expand the amount of time for submission of briefs.

“The Mukasey decision severely compromises the fairness of immigration proceedings and leaves immigrants, who often have limited English skills and are ignorant of the U.S. legal system, vulnerable to improper deportation,” said Caroline Cincotta, attorney with the ACLU Immigrants’ Rights Project. “Countless people who have a legal claim to remain in the country will be deported through no fault of their own if this rule isn’t overturned immediately.”

Attorneys who worked on the brief include Gelernt, Guttentag, Cincotta, Michael Tan and Farrin R. Anello of the ACLU Immigrants’ Rights Project.

Attorney General Holder’s testimony regarding the Compean decision can be found at: upload/HatchToHolder.pdf

The ACLU’s friend-of-the-court brief and other information are available online at:

More information on the ACLU Immigrants’ Rights Project is available online at:

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