Among one of the last actions taken by the outgoing Bush administration, Attorney General Michael Mukasey ruled that immigrants facing deportation do not have an automatic right to an effective lawyer, stoking outrage among immigration advocates who say the government aims to weaken immigrants’ right to fair hearings. 

The Associated Press reports that Mukasey, in his 33-page decision, said that the Constitution does not entitle someone facing deportation to have a case reopened based upon shoddy work by a lawyer.  He said Justice Department officials do have the discretion to reopen such cases. 

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.  

According to The New York Times, Mr. Mukasey did leave open one avenue of appeal for illegal immigrants who have been wronged by their lawyers. He said the immigration courts could allow an immigrant to reopen a case “as a matter of administrative grace” in cases of extreme lawyerly error that probably changed the outcome of the initial removal proceeding. The opinion included detailed rules for reopening a removal order. 

Immigrant groups argued that Mukasey’s decision, which came nearly two weeks before the Bush administration left office, rejects decades of established legal precedence and threatens a population already vulnerable to fraud.  “People pretend to be lawyers and hang up a shingle and tell the client, ‘I am a lawyer and I am going to represent you,’ and then they don’t said Nadine Wettstein, director of the American Immigration Law Foundation’s Legal Action Center.  “If that were to happen, this decision says ‘tough luck.’” 

Mukasey’s ruing comes after a series of instances in which immigrants claimed poor legal representation and sought to have their cases reopened after they were ordered to leave the country by an immigration court.  The country’s immigration court system does not track how man immigrants seek to reopen cases for this reason, said Susan Eastwood, spokeswoman for ICE. 

“The law was settled until the Bush administration came in,” Lucas Guttentag, director of the Immigrant’s Right Project for the American Civil Liberties Union, one of several groups criticizing the ruling.   

Immigration attorney Louis Piscopo said making immigrants think twice about who they hire to represent them in court is a good thing, but not via Mukasey’s rule.  Rather, he said the ruling would instead end up hurting many immigrants who are duped by unscrupulous attorneys, making it harder for them to get a fair hearing.  “it is stripping away protections for people,”  Piscopo said.  “The decision does say you have no right to counsel, which could mean since you don’t have a right to counsel, whatever kind of counsel you get, it doesn’t matter.”