(CN) – Attorney General Eric Holder on Wednesday threw out a last-minute Bush administration order that said people facing deportation hearings do not have the constitutional right to effective counsel. Holder vacated former Attorney General Michael Mukasey’s order in Matter of Compean, Bangaly and J-E-C, and ordered that immigration judges “continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel.”
Because most immigration cases are civil, rather than criminal litigation, refugees and other immigrants facing removal do not have the same rights as criminal defendants.
That provision – plus foreign and domestic politics – contributed to a panoply of legal abuses in the U.S. immigration system, including beatings, torture, and drugging of immigrants, illegal deportations and mass denial of counsel, in immigration prisons and out of them. The abuses intensified under – in fact, typified – the Reagan administration. Several federal court rulings, including Orantes-Hernandez v Thornburgh and American Baptist Churches v Thornburgh, documented these abuses and found them illegal.
For example, refuge-seekers in U.S. immigration prisons were ordered deported for “failing to appear” at asylum hearings inside prisons, because prison guards would not let them into prison courts; refugees were drugged and deported; placed in solitary confinement for months; tortured in solitary confinement; deported to be tortured and executed; and that the FBI and CIA actually informed security services in home countries, from whom refugees feared persecution, of the times and flight numbers of the deportation planes.
Occasionally, federal judges hearing appeals ordered the Immigration and Naturalization Service to go down to the deportees’ home countries and bring them back.
Just this week, the 9th Circuit ordered that an asylum seeker be granted a new trial because the immigration judge had ordered that he be represented by the government prosecutor who was trying to deport him.
Nonetheless, the George W. Bush administration insisted that there is no constitutional right for an immigrant to have his or her case reopened because of denial of effective counsel.
Bush’s last Attorney General, Michael Mukasey, ordered on Jan. 7, 2009, that though immigrants “have a statutory privilege to retain private counsel at no expense to the Government,” they do not have the right to “government-appointed counsel” under the 5th or 6th Amendments, or any other clause of the Constitution.
In vacating Mukasey’s order, Holder pointed out that Mukasey ordered the new policy to take place “forthwith,” even though it appeared to violate orders from “a number of Federal Courts of Appeals.” For that, and other reasons, Holder wrote, “I have determined that it is appropriate to reconsider the January 7, 2009 decision.”