June 10, 2009
Overdue Due Process For Immigrants
Charles H. Kuck: Marking A Landmark Legal Win That Restores Due Process Taken Away Years Ago
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Attorney General Eric Holder (CBS)
Attorney General Holder took a step towards restoring a semblance of constitutional protection to all Americans last week, when he overturned the decision of Attorney General Mukasey in Matter of Compean, an Immigration Court matter pertaining to ineffective assistance to counsel.
You might ask how does this apply to all Americans? The answer is quite simple. When a government begins to argue that due process and basic constitutional protections do not apply to a portion of the population living in the United States, it is clear that it could easily be extended to another portion of the populace.
The erosion of the rights of immigrants began five years before the tragic events of September 11, when Congress passed in 1996 a horrific immigration law that eviscerated the ability of immigrants to seek the protection of the United States, and severely limited their rights if brought before an immigration court. Attorney General Mukasey, on his last day as Attorney General under President Bush, issued a decision in a previously undiscussed immigration court case,Matter of Compean, in which he declared that there was no due process right to effective assistance of counsel for immigrants in Immigration Court.
Immigration court is a strange creature in the context of the legal system. There are effectively no rules of evidence, no discovery, and under of Matter of Compean, no right to effective assistance of counsel. In the Immigration Court system, the Department of Justice makes the final decision on the outcome of each case, not the independent judiciary. The Attorney General can, and sometimes does, simply reverse the decision of the lower immigration courts, to suit his or her political agenda.
What was Attorney General Mukasey’s agenda as it pertains to immigrants is still unclear (at least to some), however, what is evident is the simple fact that he believed that the Constitution and its protections does not extend to immigrants. That is why the American Immigration Lawyers Association (AILA) welcomed the restoration of due process in the Immigration Court system when Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey in Matter of Compean,.
This decision by Attorney General Holder did not come as a surprise. He had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning. And, while Attorney General Holder did not issue a substantive decision outlining his reasoning (he simply noted in the reversal that the constitutional issues relied on by Attorney General Mukasey were not necessary to the decision in the case), AILA on behalf of all of our members’ immigrant clients, is grateful for this restoration of a basic constitutional principle-Due Process, in the immigration court system.
It is refreshing to see an administration live up to its word. The restoration of the prior standard for claiming ineffective representation in immigration court proceedings is a welcome sign that the Obama administration understands that the rights that apply to the least of us, apply to all of us. By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures. Attorney General Holder’s action, along with the other positive signs from the Administration, signal that a restoration of our most sacred principles of justice has begun.
Now this does not mean that we have come a long way towards fixing what is a tragically broken immigration court system. The reality is that as long as immigrants remain unrepresented in immigration court (more than 80% of all detained immigrants are presented before an immigration judge without counsel), injustice will occur.
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As long as there are quotas set for immigration judges to process a certain number of cases each day, week, month and year, injustice will occur. As long as a 15 member Board of Immigration Appeals reviews more than 35,000 cases a year, injustice will occur. As long as relief from removal remains elusive for long term residents of the United States who have U.S. citizen parents, spouses and children, and who have committed no crime, injustice will occur. We must continue to work to overcome the legacy of almost 14 years of ill-thought out and incredibly ineffective immigration laws. The system is still broken, injustice occurs, and our immigration court system does not serve America’s best interests.
So, while we welcome the news that Attorney General Holder has quickly moved to restore a semblance of due process for immigrants, the reality remains that the system is still broken, injustice occurs, and our immigration court system does not serve America’s best interests.
By Charles H. Kuck
Special to CBSNews.com
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- If somebody crosses a US border, without processing by the US Immigration department they are here illegally. They are NOT US citizens. The 14th amendment was created to define citizenship, naturalized primarily, as a way to ensure African American's were not denied fair and equal status.
That fact that the 14th amendment does use the word "person" but it is easy to see that the "persons" referred to are natural US citizens - not illegal aliens. If you want due process that all citizens are entitled to then come into the country legally and you will have a status that entitles you to that due process. If you are here illegally why are you entitled to drain the resources of states and municipalities by providing legal counsel, court dates and support?
I understand they are people like me, and I understand they have human needs but the US can not take in every person on the globe who can just show up. There are visa's and citizenship processes. They are not easy - nor should they be. It is a privilege to be a US citizen and should not be handed out as if it is worthless. - Reply to this comment
- Our Politicians keep telling us our Immigration laws are broken and we need an comprehensive solution, which are code words for Amnesty, our Immigration Laws are not broken, they just have not been enforced, what is broken is our Political system when we elect Corrupt/Pandering politicians that puts their desires ahead of the Constitution of USA and the Rule of Law!
Our government fails the most basic and primary task & duty of government, to protect this Nation and its Citizens from invasion and enforce its laws.
They refuse to abide by our Constitution, refuse to enforce our Immigration Laws and refuse to honor their Oath of Office!
Our Government, past & present, Republican & Democrat, have allowed the invasion of 20 to 30 million criminals and uneducated peons which is the largest invasion of any Nation, at any time, by any means & in direct violation of Article IV, Section IV of our Constitution.
This refusal to abide by our Constitution or enforce our Immigration Laws should be classified as Treason of the most foul kind, & as grounds for impeachment & trials for Treason!
Not only have they allowed the invasion, they force American tax payers to pay Billions on Billions of dollars to provide Welfare, Prison cells, Educate the invaders numerous children, and free medical care, at the same time the invading horde break numerous laws and massive document fraud, & are destroying our schools, hospitals, communities, culture and standard of living while Robbing, Raping, Killing & Assaulting American Citizens at an rate the terrorist can only dream about.
Recent statements in Mexico from both President Obama and Secretary of State Hillary something needs to be done. "Our inability to prevent weapons from being illegally smuggled across the border to arm these criminals causes the deaths of police officers, soldiers, and civilians," she said.
But no mention, concern or care that their refusal to stop the Massive Invasion of Illegal Aliens pouring across our borders or enforce our immigration laws that causes an estimated 25 Americans deaths per day and 10,s of thousands victims of Assault, Robberies, Rapes, Identify thief, and other assorted crimes committed by the invading horde of Illegal Aliens from Mexico on American citizens each year!
It is a telling indictment & shows their Empathy & Compassion of our Politicians & their priorities when they express 100,s of time more concern over three Terrorist being water broader than the havoc & crimes of Illegal Aliens against American Citizens!
Most of our Politicians in Wash. DC are wading knee deep in innocent American blood and suffering because they put Self Interest ahead of the interest of American Citizens & the future of this Nation!
The Welfare vote for the Democrats to further their Socialist Agenda and the Slave Labor for their Pay Masters in the Chamber of Commerce & Business for the Republicans is more important to our Corrupt power mad Politicians than the lives and safety of Americans citizens!
The Citizens of this Nation have not sacrificed with blood, sweat & tears for over 200 years & obeyed the Laws of the land, paid the taxes, and fought the wars & built this Nation to see Corrupt politicians turn this Nation into the United States of Mexico without a shot being fired, to serve their demented, nefarious goals and lust for power! - Reply to this comment
- The 14th Amendment to the Constitution states very clearly that any PERSON within the jurisdiction of a state is entitled to due process,. It does not say, any CITIZEN or any LEGAL ALIEN.
Why don`t all of you spend some time actually reading the Constitution instead of wasting ours with your ignorant opinions? - Reply to this comment
- Obama wants there votes and we have to give them our jobs, healthcare, our constitutional rights. And Obama is taking away our rights as fast as he came. And if you are a conservative you are the evil and a rightwinger . Mr. AG Holder his is one of Obama's croines. And by the way Obama is not GOD
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- Illegal aliens are people. No person anywhere under any circumstances should be imprisioned indefinitely without a fair trial or a sentencing . Imprisoning people indefinitely for no justifiable reason is what evil dictators and tyrannts do. It is not something civilized society embraces. WE do not torture and we do not imprision indefinitly without due process. End of discussion!
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- Read the article closely, It says Overdue due process for immigrants., not illegal immigrants. I believe that LEGAL immigrants already have due process under the Constitution. No person who is in the U. S. illegally should have the American Constitutional Right to Due Process. Also we need to repeal and/or recind the law granting American Citizenship to babies born to illegal immigrants. Our Congress is concerned about breaking up families and the solution is simple, deport the illegal immigrant who should not have been here to have the babies anyway and send the babies home with their parents
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- How do ILLEGAL immigrants have rights under our constitution? When will our federal government recognize LEGAL IMMIGRANT & LEGAL CITIZENS constitutional rights. When will our federal government start protecting OUR interests? The loss of jobs, the irritating "press one for english" garbage, the over crowding of houses & neighborhoods (that slowly start to resemble 3rd world countries as a result). The people who think ILLEGAL immigrants are treated poorly & think those of us who want to see them deported have obviously never had to deal with them on a daily basis. They are not only trying to better their lives. They steal jobs from legal citizens & send money back to where ever it is they come from. They show a complete disregard for our laws & customers by thumbing their noses up at them & DEMANDING services & equal treatment.
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- Due process is something available to AMERICANS and not illegal visitors to this country. Build a fence. Electrify it. Put a minefield around it.
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- Illegal immigrants should have no rights nor should their illegal born children or any other relative they may have in the US. Illegals & the low life employers who use them are the biggest reason US Citizens are without work & or working below poverty wages. They are the reason medical & insurance is so high. They are the reason we have more drugs & crimes. They have ruined our schools & neighborhoods. They should be treated the same as we would be treated if we were to go to Mexico illegally, of course even going there legally will get you robbed or killed.
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- If this article is talking about illegal immigrants they are way off base. The only legal rights a illigal should have is 3 meals a day, a roof over his/her head and a fast trip back to where they came. Lets face it people they keep talking immigrants when really they are talking about crimals who have broken the law and invaded our country. My wife is a immigrant, which means she came here the right way, worked hard became a citizen. These they are usally talking about are those who are illigal and broke the law. 3 meals and a roof for a short time then a fast trip home. Oh yeah since all the money they have earned in this country was earned illigal then take every thing they got home, cars, tv, cash same as we do with drug dealers same thing. Oh you could leave them a $100 just so they can get a taxie when they get home.
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