Attorney General Eric Holder Jr. today vacated a ruling issued in the waning days of the Bush administration that denied immigrants the right to effective legal counsel in deportation proceedings.
In January, then-Attorney General Michael Mukasey’s scrapped a 20-year-old precedent established in Matter of Lozada, a Board of Immigration Appeals decision which held that immigrants could reopen their hearings based on lawyer error. (We wrote about it here.) Mukasey held that immigrants in deportation proceedings have no constitutional right to effective assistance. The government, he wrote, can not be held responsible for the conduct of their privately retained lawyers, but the Justice Department could, “as a matter of administrative grace,” reopen deportation proceedings in some cases. He set forth an elaborate set of guidelines for immigration judges to follow in making such determinations.
Holder’s three-page decision rejects Mukasey’s framework, without considering the constitutionality issue. It reinstates, for the time being, the Board of Immigration Appeals ruling in Lozada, while the director of the Executive Office for Immigration Review considers new guidelines for handling ineffective assistance claims. The proposed changes will be published in the Federal Register for public review and comment.
Holder also ruled, in the interim, that the BIA has discretion to consider ineffective assistance claims even if the conduct occurs after a removal order is entered. But he said the Justice Department's "litigating positions...will remain unaffected by this Order."
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