The Justice Department is proposing a set of rules that would hand immigration officials a bigger switch for punishing lazy or incompetent lawyers who represent immigrants.
But even as the department pushes to crack down on misconduct, Attorney General Michael Mukasey is quietly reconsidering long-held precedent that allows immigrants to reopen their cases when they can show their lawyers doomed them to lose.
The moves are the latest attempts to renovate an immigration system that has been buffeted by an increasing caseload, political scandal and inconsistency from the bench. The proposed rules were published in the Federal Register on July 30. A week later, Mukasey directed the Board of Immigration Appeals, which reviews decisions from the nation's immigration courts, to hand over three recent opinions for review. Mukasey said he was considering whether aliens had a right to effective assistance of counsel, according to three Aug. 7 orders.
Several immigration lawyers and advocacy groups, while broadly supportive of the proposed rules, say Mukasey's review signals a shift away from a 20-year precedent recognizing aliens' right to effective counsel. Though they support the Justice Department's effort to curb attorney mistakes, they are wary of any proposals that might cut off immigrants' access to the courts when bad representation does occur.
"We're in favor of taking measures to ensure that aliens are represented by competent counsel," says Lee Gelernt, deputy director of the American Civil Liberties Union's Immigrants' Rights Project. "But sanctioning attorneys cannot be a substitute for the right to bring a claim of ineffective assistance."
The Justice Department declined to comment on the proposed rules or the reasoning behind Mukasey's review.
"The [attorney general's] certification of the case indicates that he thought it was worthy of his review," says spokesperson Charles Miller.
HARSHER CONSEQUENCES
The proposal targets a bar that has seen its members disciplined in increasing numbers in recent years. The Justice Department's Executive Office for Immigration Review (often referred to as "Eeyore," as in the lugubrious Winnie the Pooh character) encompasses the nation's 53 immigration courts and the BIA. The appeals board, EOIR's highest administrative body, also acts as its internal disciplinary body.
But it has been largely reactive. Of the 424 lawyers disciplined by the board since 2000, the vast majority were brought to heel first by state bar counsel. Punishment by the board, as with state courts, ranges from formal admonition to expulsion.
In D.C., for instance, the Office of Bar Counsel has seen a spike in immigration-related disciplinary cases. In 2000, the office investigated 28 lawyers for their immigration work. Last year, the office opened 64 immigration-related investigations, the most of any category of misconduct, says bar counsel Wallace Eugene Shipp Jr. (The office has not tabulated its 2008 numbers, but Shipp says there is no indication that the trend is subsiding.)
As it is, the board can discipline lawyers only if it is "in the public interest," a vague threshold that includes those convicted of criminal offenses or found to have engaged in unethical or unprofessional conduct. The board is powerless to suspend a lawyer who is under investigation by state regulators. It can only react once the state proceedings have been resolved.
The proposed rules, which grab from the American Bar Association's Model Rules of Professional Conduct, would give the board greater opportunity to strike first. The board could suspend lawyers under investigation immediately, and EOIR's general counsel could initiate misconduct proceedings on broad new grounds.
Lapses of diligence and competence would have harsher consequences. Lawyers who miss hearings or come ill-prepared would open themselves to discipline. Those who collect on services without entering appearances, repeatedly file shoddy and under-researched briefs, or fail to communicate fully with their clients would also be at risk. Even the definition of "attorney" would be cinched, so that only lawyers who are eligible to practice law in at least one jurisdiction could work in the immigration courts.
The last day for public comment on the proposed rules was Sept. 29.
CHANGING A PRECEDENT
Since 1988, the BIA has recognized that aliens can bring claims of ineffective assistance. The board's decisions are appealable to the federal circuit courts.
While aliens have no Sixth Amendment right to counsel, the Supreme Court has recognized their Fifth Amendment right to due process. Some circuits interpret "due process" to include claims of ineffective assistance or acknowledge a statutory right to bring the claim.
In August, Mukasey asked counsel in the cases to submit briefs on the issue. Specifically, he wanted to know whether there was a right -- constitutional or statutory -- to effective assistance in immigration proceedings; and if so, what procedures vindicate that right.
Mukasey also invited briefs from the ACLU and the American Immigration Lawyers Association. The amici are due by Oct. 6.
The attorney general gave no indication of his own position in his letters to counsel or in his August orders announcing the review.
So far, 33 immigrant advocacy organizations and 31 lawyers from prominent firms around the country have written Mukasey, asking to file amici.
The ACLU and AILA oppose the review entirely, and they question its timing. Why, they ask, would Mukasey disturb a 20-year precedent now, in the waning months of the Bush administration?
"I'm concerned about where this might be heading," says limits the ability of shareholders Mayer Brown partner Allen Erenbaum, who heads the firm's immigration group in Los Angeles. Erenbaum, who is among the group of 31 lawyers, welcomes the misconduct rules but says disciplining lawyers for misconduct will amount to little if their clients can't seek redress in court.
"The attorney general has historically weighed in ... where the issue is one of major importance, he feels that the BIA may have gotten it wrong, or there's a need to establish a uniform national standard," says Justice Department spokesperson Miller.
The Justice Department declined to say which circumstance applied in the attorney general's decision to review these cases.
The cases under consideration by the Justice Department spring from the 4th, 7th, and 11th circuits -- courts that have been hostile to claims by aliens of ineffective assistance or vague about their right to bring them. If the parties in the cases appeal Mukasey's final order on the issue, these courts will review them.
Several circuits have recognized a constitutional or statutory right to effective assistance for aliens, including the 1st, 2nd, and 9th.
Gelernt, of the ACLU, predicts the Supreme Court will see certiorari petitions on the issue of effective assistance in the next year. In the meantime, he says, the ACLU and the other groups will be lobbying Mukasey to preserve ineffective assistance claims and ease the requirements for prevailing under them.
"The last thing that the immigration system needs is to penalize aliens for the harm done by incompetent or unscrupulous immigration attorneys," Gelernt says.
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