Attorney General Mukasey Decides "Aliens" Have No Right to Counsel

On January 7, 2009, the Attorney General of the United States decided in a landmark case that "aliens" (this is the government's term for non-immigrants) do not have the right to counsel. According to the recent decision, aliens do not have the right to counsel under either the Fifth Amendment or the Sixth Amendment. Aliens do, however, have the "privilege" to retain private counsel at their own cost. In other words, Aliens can appear at their Hearings with Attorneys, but Aliens who do not have an Attorney will not be given the chance to obtain one.

In Matter of Compean, one of the three cases which prompted this decision, a native of Mexico was placed in Removal Proceedings in 2004. While attempted to obtain relief through Cancellation of Removal, his application was denied as was his appeal to the Board of Immigration Appeals. He then sough to reopen his case by asserting Ineffective Assistance of Counsel, claiming that his former Attorney's mistakes prejudiced the outcome of his case.

This decision has huge ramifications for Aliens in removal proceedings who have not had the chance to obtain an Attorney in time for their hearings. Before this precedent was made, Aliens could obtain "continuances" in removal proceedings so that they could obtain an Attorney-Aliens were not denied the opportunity to be represented. Now this will change based on the new precedent-Aliens who appear in removal proceedings without an attorney will have to proceed in pro per (for themselves), entering their own pleas and asserting their own relief from removal. In reality, what this means is that more Aliens will be removed promptly by the government. This is due to the complicated nature of the United States Immigration laws that make most Aliens unaware of their own relief from removal. Aliens who cannot assert their own relief during removal proceedings will most likely be removed quickly.

This decision also has huge ramifications for Aliens represented by "ineffective" counsel. Since Matter of Lozada in 1988, many Aliens' only relief to removal has been their ability to reopen cases based on Ineffective Assistance of Counsel-a remedy that will now be extremely difficult to obtain due to the new ruling. Because Aliens no longer have the right to counsel, they accordingly have no right to "effective" counsel. According to the Decision, cases may be reopened only as "a matter of administrative grace". Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), Board of Immigration Appeals decisions that asserted the rights of Aliens to effective assistance and the means to asserting this right have mostly been overruled.

There is hopeful speculation from some Immigrant Rights groups across the United States that this decision will be repealed with the new Administration, but until then, the precedent stands. To read the entire case, see the link in 'resources'.