LatinaLista — The 11th hour decision by Attorney General Michael Mukasey (And we do mean 11th Hour since it was only a few hours before he delivered his farewell remarks to Department of Justice employees) was meant to serve as a last parting shot from the Bush Administration when it comes to influencing the proceedings in the nation’s immigration courts system.
U.S. Attorney General Michael Mukasey.
It wasn’t enough that this administration oversaw the selection of immigration judges based, not on merit, but political affiliation. Now, it seems that those immigrants who were represented by incompetent, lazy or mistake-prone lawyers and lost their cases, have no legal recourse to reopen their cases.
“This order will have a tremendous negative impact on countless people who will be deported simply because they had the bad luck to be represented by the wrong immigration attorney,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt. “This is a dangerous move away from the U.S. tradition of fairness and due process. Losing your case because your lawyer missed a deadline or made some other egregious error can never be considered a fair process.”
Yet, in the government’s haste to strip immigrants of any legal rights, they inadvertently clarified an issue that has been a driving force among critics of undocumented immigrants in justifying the immigrants’ removal from the United States.
At long last, the government has settled the question of whether or not undocumented immigrants are criminals.
The Attorney General’s decision spells out in no uncertain terms just what immigrants are entitled to:
Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings.
However, in declaring, in multiple places, that “aliens” have no right to counsel, the Attorney General further says that
Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.
So, if deportation proceedings are civil in nature then that would mean that undocumented immigrants are not criminals — violators of a criminal law — but only in violation of a civil offense. A much less scary perception.
It’s a memo that the Attorney General needs to make sure that the Department of Homeland Security (DHS) receives before they try to renew efforts in their own 11th hour declarations to further criminalize undocumented immigrants.
By silently condoning the mischaracterization of undocumented immigrants as criminals, the DHS has lent its support to those radicals and nativists who, by their speech, have spearheaded a campaign of hate against Latino immigrants which have resulted in Latinos being attacked, harassed and murdered because of their ethnicity.
The appalling part is that the real criminals, those who incite this violence against Latino immigrants, are getting off completely free.
Where’s the justice in that?