Attorney General Ends Constitutional Protection For Immigrants From Lawyers' Mistakes

January 8, 2009 12:00 am

Media Contact
125 Broad Street
18th Floor
New York, NY 10004
United States

Immigrants With Legal Standing At Risk Of Being Deported

CONTACT: (212) 549-2666;

NEW YORK – In a radical departure from years of legal precedent, Attorney General Michael Mukasey has ended the practice of allowing immigrants to reopen immigration cases that they lost because of their lawyers’ mistakes or incompetence. Mukasey’s order, which is effective immediately, may lead to the deportation of innumerable immigrants who have lost their cases due to attorney error.

“This order will have a tremendous negative impact on countless people who will be deported simply because they had the bad luck to be represented by the wrong immigration attorney,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt. “This is a dangerous move away from the U.S. tradition of fairness and due process. Losing your case because your lawyer missed a deadline or made some other egregious error can never be considered a fair process.”

In early August 2008, Mukasey instructed that any briefs responding to the proposed reversal of the right to claim “ineffective assistance” of counsel be submitted by mid-September. 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, preventing organizations opposing the change, including the ACLU and the American Bar Association (ABA), from providing a meaningful response.

“Days before President-elect Obama takes office, the Bush Justice Department has taken another step to undermine the fundamental rights of a uniquely vulnerable group,” said ACLU Immigrants’ Rights Project Director Lucas Guttentag. “This cries out for reform to preserve the core values of equality and fairness.”

Mukasey’s order, as well as letters to Mukasey from the ACLU, the 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:

Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.

The Latest in Smart Justice

ACLU's Vision

The American Civil Liberties Union is a nonprofit organization whose mission is to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States of America.

Learn More About Smart Justice

Smart Justice issue image

The ACLU Campaign for Smart Justice is an unprecedented, multiyear effort to reduce the U.S. jail and prison population by 50% and to challenge racism in the criminal legal system.