No Due Process Right to Have an Effective Immigration Attorney

On September 18, 2018, the Sixth Circuit Court of Appeals held that the Constitution does not give an immigrant the right to re-litigate his case if he chose a bad attorney first time around. The Fifth Amendment’s due process clause does not grant an immigrant a right to effective counsel. It only gives an alien, facing removal, the right to be heard before an immigration court that honors their right to a fair hearing, but it does not shield the unsuspecting immigrant from the consequences of poor lawyering.

In the case, Wissam Ibrahim Al-Saka, a Lebanese native appealed his deportation order. Al-Saka married a U.S. citizen while in Lebanon. He needed to stay married at least for two years to be eligible for permanent residency. However, just weeks after he entered the United States, the couple signed a religious divorce, and the state of Michigan annulled the civil marriage shortly thereafter. Al-Saka nevertheless stayed in the country, and a few years later he asked the immigration services to grant him a waiver of the two-year marriage requirement and grant him permanent residency. He argued, he entered into the marriage in good faith and deportation would cause hardship. After a hearing, the immigration judge denied the waiver request because the judge found Al-Saka’s testimony not credible.

Next, Al-Saka asked the Board of Immigration Appeals to review the immigration judge’s credibility finding along with his claim that he received ineffective assistance of counsel. He argued that his attorney failed to subpoena his ex wife, and did not hire an expert in Islamic matrimony, which would have aided his case. But the Board affirmed the immigration judge’s decision.

In a final attempt to evade deportation, Al-Saka appealed to the Sixth Circuit Court. This too, was unsuccessful. The Court rejected Al-Saka’s arguments and affirmed the Immigration Judge’s findings.

Because Al-Saka claimed that the conduct of his private lawyer violated the Fifth Amendment, the Court took the opportunity to write about the immigrants’ due process right or the lack thereof.

By law, removal proceedings are purely civil actions, although anybody who has had the misfortune to experience a removal hearing knows that deportation is more similar to a criminal case. Consequently, the Fifth Amendment’s right to counsel, which applies to criminal cases, does not apply to immigration cases. The Fifth Amendment only guarantees the right to have a fair hearing. For example, if a judge knew that the interpreter could not accurately translate the alien’s testimony and does not correct the problem, that would violate the alien’s due process right to have a fair hearing. But, poor lawyering does not count as due process violation, the Court held. As long as the government provides the opportunity for the alien to present his case before the immigration authorities, due process is satisfied.

The Court went on to state that if the alien “chooses a bad attorney” who might miss filing deadlines, or employs a bad litigation tactics, that is the alien’s fault and cannot give the alien the right to present his case one more time.

The Sixth Circuit Court’s ruling is the latest reminder that immigrants have little or no rights under the Constitution. It also highlights the severe consequences of being represented by a bad immigration attorney. While no court opinion gives guidance on how to avoid choosing a bad attorney, if you have any doubt about your current representation, or you are in need of representation in immigration-related cases please do not hesitate to contact our offices.

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