AS a swan song to the Bush Administration’s seemingly relentless assault on aliens’ due process rights, Attorney General Michael B. Mukasey issued a decision on January 7, 2009 purporting to eviscerate a Respondent’s right to be protected from "ineffective assistance of counsel" in removal proceedings. Undoing decades of jurisprudence respecting an alien’s right to effective assistance of counsel as rooted in the due process clause of the 5th Amendment, Mukasey ruled that because removal proceedings are "civil and not criminal," the Constitutional guarantees do not apply. This ruling, if not overturned by the US Circuit Courts of Appeal, effectively protects inept lawyers from client complaints and leaves the victims in all but the most egregious cases left without redress.

An alien’s right to effective assistance of counsel has long been recognized as part and parcel of the right to fundamental fairness, or due process, in removal proceedings. Although the Constitution does not expressly provide for "right to counsel," as the 6th amendment provides for accused criminals, Federal Courts and the Board of Immigration Appeals (BIA) have roundly respected the right to effective assistance of counsel in removal proceedings for decades. In Matter of Lozada (BIA 1988), the seminal administrative case on the subject, the BIA set forth three basic requirements for an alien to seek relief from the damaging effects of an attorney’s ineffective assistance.