Mukasey’s Ukase

The dictionary defines “ukase” thus: “In czarist Russia, an edict or order of the czar having the force of law, or any order or proclamation by an absolute or arbitrary authority.”1 What better word to describe outgoing Attorney General Michael Mukasey’s January 7th diktat,2 Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009)? For over two decades aliens in exclusion, deportation and removal hearings have been able to challenge negative outcomes in immigration court by documenting “ineffective assistance of counsel” (“IAC.”) The federal courts supported this approach, finding a constitutional right to a competent lawyer in the Fifth Amendment’s guarantee of due process. The Board of Immigration Appeals – a creature of federal regulation and the “voice” of the Attorney General on immigration law – also embraced legal challenges based on IAC, issuing landmark decisions in 1988 and 2003.3 Life went on, as lawyers and judges all knew and applied the rules in IAC cases. And who could, or would, complain? After all, even though immigration court hearings are civil, rather than criminal proceedings, deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty - at times a most serious one - cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.”4 Surely the “rule of law” so vociferously championed by immigration restrictionists includes the right to competent counsel. But deep in the bowels of the Bush Administration festered a cadre of government lawyers determined to make life hard for immigrants by defining due process as narrowly as possible. Angered by the thought that immigrants might get a “do-over” in court if their lawyers made mistakes, these attorneys began peppering the appellate courts with the argument now made manifest by Mr. Mukasey in Compean - the Constitution “does not entitle an alien to effective assistance of counsel, much less the specific remedy of a second bite at the apple based on the mistakes of his own lawyer.”5 In the coming months legal scholars will determine the nature, effect and jurisprudential soundness of Compean. In the short run, though, we are left with truly political questions: Why issue this decision at all, and why now? Who is the target audience? Who benefits?

Daniel M. Kowalski Editor-in-Chief

Bender’s Immigration Bulletin

(Copyright 2009 Daniel M. Kowalski, All Rights Reserved.)

1 Dictionary.com Unabridged (v 1.1). Random House, Inc. 2 “a harsh, punitive settlement or decree imposed unilaterally on a defeated nation, political party, etc.[;] any decree or authoritative statement.” Dictionary.com Unabridged (v 1.1). Random House, Inc. 3 Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003). 4 Justice William O. Douglas, Bridges v. Wixon, 326 U.S. 135, 154 (1945). 5 Compean at 714.