[Congressional Record Volume 155, Number 48 (Thursday, March 19, 2009)]
[Extensions of Remarks]
[Pages E724-E725]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               INTRODUCTION OF THE ACCESS TO JUSTICE ACT

                                 ______
                                 

                          HON. JAMES P. MORAN

                              of virginia

                    in the house of representatives

                        Thursday, March 19, 2009

  Mr. MORAN of Virginia. Madam Speaker, I rise today to introduce the 
Access to Justice Act. A bill to amend the Immigration and Nationality 
Act to establish a right for an alien to file a motion to reopen a case 
in removal proceedings if the alien can demonstrate that counsel or a 
certified representative provided deficient performance.
  In one of his last actions as Attorney General, Michael Mukasey ruled 
that immigrants have no constitutional right to effective legal 
representation in deportation hearings. After more than 20 years of 
precedent in special immigration courts overseen by the Justice 
Department, those now facing deportation have no remedy for the errors 
committed by incompetent, inattentive lawyers, or even those who claim 
to be lawyers.
  This 11th hour regulation not only goes counter to what has already 
been established by a long line of decisions in the federal courts and 
the Board of Immigration Appeals but also is a matter of equal 
protection/due process. In fact, the United States Court of Appeals for 
the Ninth Circuit stated in an opinion, ``Vulnerable immigrants are 
preyed upon by unlicensed notaries and unscrupulous appearance 
attorneys who extract fees in exchange for false promises and shoddy, 
ineffective representation.''
  The Supreme Court has found that non-citizens are ineligible for 
court appointed counsel in civil cases. Removal proceedings are not 
considered criminal and therefore, immigrants who are in the process of 
being deported must find their own counsel. Judge Katzmann on the 
Second Circuit Court of Appeals said in a recent New York Times 
article, ``Justice should not depend on the income level of 
immigrants.'' A study in the Georgetown Journal of Legal Ethics found 
that only 35% of individuals in removal proceedings had counsel; yet 
asylum seekers who have counsel are three times more likely to succeed 
in their claim compared to those without representation.
  Because of this Supreme Court decision incompetent legal 
representation is now ``discretionary'' and thus unreviewable. So the 
former Attorney General, the final arbiter in immigration cases, 
decided in his final hours in office without any consultation with 
Congress that the 6th amendment right to counsel only applies to 
criminals, not to non-criminals who have privately retained lawyers in 
civil removal proceedings. Imagine in our great melting pot of an 
immigrant nation a decision that gives greater access to justice to 
those who might have committed a felony more than to those who want to 
be Americans. When a lawyer fails to show up to court or forgets to 
file the required paperwork, the individual being deported will have no 
legal right to appeal on the grounds of deficient counsel.
  That is why I am introducing The Access to Justice Act, a bill that 
would create a legislative fix to the Mukasey decision. This bill 
creates a right to file a motion to reopen a removal case if deficient 
performance of counsel can be demonstrated. To provide relief to

[[Page E725]]

those who are currently in removal proceedings under this decision, 
enactment of this bill would allow them to file an appeal.
  I urge my colleagues to support the Access to Justice Act. This 
important and urgent legislation will bring justice to those affected 
by Mukasey's midnight ruling and ensure fairness in removal 
proceedings.

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