Whittling Away Immigrant Rights

“Injustice anywhere is a threat to justice everywhere.”


Martin Luther King, Jr.’s words ring truer than ever on the heels of Attorney General Michael Mukasey’s latest ruling on January 8, 2009. Mukasey issued a ruling concerning appeals to the deportation of three different immigrants. The immigrants appealed on the basis of attorney error, but Mukasey stated that, “neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.” (Schwartz, John. New York Times)


A case five years ago, In re Assad, established precedence which prompted the Board of Immigration Appeals to routinely allow immigrant appeals on basis of attorney error. However, the Attorney General’s ruling is now prevailing law, barring an appeal.


While some support this eleventh-hour ruling by the departing Attorney General, others argue that immigrants are often preyed upon by extortionary attorneys or have to settle for less-than-competent counsel. The 9th Circuit said in one opinion last year that often “vulnerable immigrants are preyed upon by unlicensed notarios and unscrupulous appearance attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation.” (Schwartz, John. New York Times) I can personally attest to this, having worked on asylum cases where families in removal proceedings were charged $10,000 and then asked for another $12,000, all with nothing to show for it but lost time inside a drab detention center.

Extreme lawyerly error, as determined by the court, is now the only way immigrants can appeal cases based on the quality of their defense. Mukasey negated the most common method of appeals in immigration cases by explaining, “There is no constitutional right to counsel, and thus no constitutional right to effective assistance of counsel, in civil cases.” (Schwartz, John. New York Times)

By the time Obama gets established in office, hundreds if not thousands of immigrants could potentially have been deported due to Mukasey’s new ruling. Mukasey and other supporters of this ruling argue that this appeal was too often a delay tactic by immigrants attempting to stay their removal proceedings. What is certain is this – immigrants’ Constitutional rights shrunk five sizes last Thursday. And when anyone’s civil liberties are threatened, all our rights are. As another of Dr. King’s statements elucidates, we are “caught up in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly.” For extralegal immigrants, 12 million and growing, this latest legal decision strips Constitutional rights the rest of America takes for granted. Mukasey’s latest ruling creates a dehumanizing distinction between Americans with rights and those without. Until this ruling is appealed, as we should all hope, we must be vigilant that the most vulnerable Americans aren’t exploited under the auspices of new controlling law.

Throughout the chilling allegory of Orwell’s Animal Farm, the Constitution or Commandments by which the animals live slowly change.  Although they begin their society with the fundamental premise that “All Animals are Equal,” it is soon changed to “All Animals are Equal, but some are More Equal than Others.”  This is the essence of Mukasey’s new ruling, that immigrants, like detainees at Guantanamo Bay, have little to no rights because they are not recognized as citizens of these United States.  What held true in Animal Farm will surely hold out here; if we allow some people to be more equal than others, we are setting up a system which necessarily exploits the most vulnerable. We must take heed not to read into the Declaration of Independence the word “citizen” where it has always said, “All men are created equal.”


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