Monday, June 8, 2009

Immigration: U.S. Attorney General Weakens Immigration Laws: Torrez-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009)

While Congress bulks up employment of border control agents, funds an impenetrable wall between the United States and Mexico, and immigration agents continue raids on employers who hire illegal aliens, the Attorney General (AG) rescinds a policy of the previous administration disallowing the use of "ineffective counsel" as a defense in deportation hearings. The rationale of the current AG for abolishing this rule is incoherent and irrelevant : "...the introduction of a new procedural framework depended in part on Attorney General Mukasey's conclusion there is no constitutional right to effective assistance of counsel in [deportation] removal hearings. Because that conclusion is not necessary to decide these cases under [the previous rule]or to initiate the rulemaking process, this order vacates the [previous rule]in its entirety." Not only is this explanation incoherent but plainly wrong. The right of defendants in criminal cases to the "effective assistance of counsel" at trial and sentencing emanates from the Sixth Amendment to the Constitution applicable to criminal cases only. Immigratrion hearings are not criminal cases, only civil proceedings at best and then only administrative hearings. While Congress attempts to stem the tide of illegal aliens, the AG places a major leak in the dike by allowing interminable delays in deportation hearings while applicants allege their counsel was "ineffective." Unlike criminal cases, counsel are not mandatory in deportation hearings, but when retained the Immigration Judges will now try to determine whether their representation was "ineffective." Using what standard? The same as in criminal cases? There is no comparison between counsel who represent defendants against prosecutors in criminal cases and counsel retained in an administrative hearing of aliens facing deportation. Given the Ninth Circuit's embrace of the AG's abolition of a sensible rule on appeal from Immigration Judge decisions, the courts can expect a flood of challenges to deportation designed to delay the proceedings. Assuming counsel is somehow found "ineffective," the case must be re heard. And appealed. The Supreme Court has never ruled that "ineffective counsel" is a ground of appeal from an immigration hearing nor that applicants in immigration hearings are entitled to counsel. Even the Ninth Circuit has held that immigration hearings are civil in nature and applicants are not entitled to counsel unless the proceedings are "fundamentally unfair" and violate due process: Torrez-Chavez v. Holder, 567 F.3d 1096 (2009). The AG has also "clarified" a Board order denying discretion of an IJ to reopen proceedings based on events occurring after entry of final order of removal, including failure by counsel to file a timely petition for review. Previously the Fourth Circuit had held to the contrary but the Supreme Court vacated the order citing the AG's "clarification"; Afanwi v. Holder, 2009 Wl 31618444. Expect more delay.

No comments:

Post a Comment