Thursday, January 8, 2009

A Final Insult to Aliens from Attorney General Michael B. Mukasey

For over two decades now the federal courts and the Board of Immigration Appeals, "the highest administrative body for interpreting and applying immigration laws," have reviewed deportation and "removal" proceedings under the not unreasonable assumption that aliens have a procedural due process right to effective assistance of counsel in litigating their right to remain in the USA when the Governments attempt to deport them. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

I suppose I shouldn't be surprised that Attorney General Michael B. Mukasey, who has trouble understanding that aliens have a due process right not to be tortured by U.S. Government officials in the name of "national security" (see below post), also has problems recognizing that aliens have other constitutional rights (or at least that the federal judiciary is the branch of our federal system that determines them). After all, this is the Bush Administration we're talking about.

Nonetheless, my disgust with our esteemed, outgoing Attorney General reached a new nadir this morning when I read that he has tried, with the stroke of a pen, to eliminate any constitutional right to effective assistance of counsel (and due process federal court review) in removal proceedings. The Attorney General's decision is there for all to see in his execrable opinion in Matter of Compean, 24 I&N Dec. 710 (A.G. 2009).

The American Immigration Legal Foundation has some choice words about this final insult to aliens in America. They warrant substantial quotation:
Late yesterday, in the waning hours of a departing Administration, Attorney General Michael Mukasey unraveled decades of legal precedent guaranteeing due process to people facing life-changing consequences—namely, deportation. With less than two weeks left in office, this Administration apparently could not resist the temptation to take one more stab at undermining fundamental Constitutional principles.

The American Immigration Law Foundation (AILF) condemns this latest and last-minute decision that is part of the Administration’s ongoing strategy to not only recede due process rights, but to thwart federal court oversight of immigration courts, which have been plagued with questions about the integrity of their decisions and allegations of political cronyism.

In a decision issued Wednesday, January 7, the Attorney General declared that henceforth, immigrants, asylum seekers, and all others in removal (deportation) proceedings do not have any right under statute or the Constitution to representation by a lawyer before they can be ordered deported. The Board of Immigration Appeals (BIA) and most federal courts have for decades operated under the premise that immigrants DO have such rights. The Attorney General has reversed many years of precedent and operation by simply declaring it so.

According to the Attorney General, because there is no legal or constitutional right to a lawyer, immigrants do not have the right to legal counsel and thus no right to complain or request a new hearing when their lawyer is incompetent or fraudulent. The Attorney General does attempt to ameliorate the harsh impact of his revolutionary action by allowing reopening of cases in certain highly extreme circumstances, but his declaration will wipe out the rights of all but a handful of people with one stroke of his pen.

“We are outraged by this action” said Nadine Wettstein, the Director of AILF’s Legal Action Center. “With this ruling, the Administration is attempting to undermine an immigrant’s right to a fair hearing on whether he should be thrown out of the country. It is yet another in a long line of midnight changes and an example of this Administration’s disregard for fundamental principles of due process of law. It is also part of an ongoing attempt to eviscerate the federal courts’ role in protecting against Constitutional abuses by the immigration agency. We strongly disagree with the Attorney General’s pronouncements and are confident that federal courts eventually will reject this action.” [My emphasis.]
Nacht und Nebel American style is the way I would describe it. Even in its last days this wretched, lawless Presidency can't end fast enough.

I strongly share AILF's, outrage, hope and conviction that this legal abomination will not survive judicial review. Better still, this rogue opinion should be immediately rescinded by Mukasey's successor.

Attorney General Michael Mukasey: Making Excuses to the Very End

I've never been impressed with Attorney General Michael B. Mukasey, the Bush Administration's replacement for disgraced former AG Alberto "Gonzo" Gonzales. Mukasey's pedigree as a retired federal judge was supposed to ensure a return of respectability and professionalism in a Department of Justice reeling from justified charges of political favoritism, illegal hiring and lapdog subservience to Dick Cheney's office on issues relating to the (il)legal treatment of detainees and otherwise: "What - on earth - business does the Office of the Vice President have in the internal workings of the Department of Justice with respect to criminal investigations, civil investigations, and ongoing matters?"

I had had some hopes of real reform from Mukasey until, during his Senate confirmation hearing, I observed his shameless waffling on whether waterboarding should be outlawed and as a torture method is illegal and unconstitutional. At that point it was clear to me that Muk was simply going to be a water carrier for the Bush Administration's illegal acts.

Sadly, Muk's subsequent stonewalling has amply borne out my concerns. As one commentator has archly observed, under Michael Mukasey "the Justice Department has behaved and continues to behave not like a law enforcement agency, but like a white-collar criminal who has been caught in some very dirty dealings and is eager to obstruct the course of justice."

Even on the way out the door Muk persists in claiming that the Bush Administration lawyers should be given a "context of the time" pass for issuing opinions on "harsh interrogation techniques" that were not simply "wrong," but both illegal and criminal.

Members of the bar should be clear in rejecting such expediency. It is precisely when the pressure to condone illegality is at its maximum that the lawyer must show courage and call a spade a spade, even at the risk of losing his career prospects or employment. To do otherwise is to debase ourselves as citizens whose license to practice law confers special responsibilities, not just to serve our clients, but the cause of justice itself.