Immigrant rights advocates expressed outrage over two new rules going into effect in the waning days of the Bush administration, one affecting how immigrants are represented in deportation cases and another mandating DNA tests for detained immigrants.
In a decision dated Wednesday, Attorney General Michael Mukasey said immigrants facing deportation do not have the right to get their cases reopened just because of shoddy work by their attorney.
Another Justice Department rule, which took effect Friday, directs federal agencies to collect DNA samples from foreigners who are detained by U.S. authorities.
Charles Miller, a spokesman for the Department of Justice, could not say why Mukasey issued the 33-page ruling at this time. The other rule, on DNA, had been proposed last year but went into effect this week.
Mukasey's ruling followed a series of instances in which immigrants ordered by a judge to leave the country sought to reopen their cases by citing poor legal representation.
Immigration attorneys said the rule threatens immigrants' right to a fair hearing in a community already vulnerable to fraud.
"People pretend to be lawyers and hang up a shingle and tell the client, 'I am a lawyer and am going to represent you,' and then they don't," said Nadine Wettstein, director of the American Immigration Law Foundation's Legal Action Center. "If that were to happen, this decision says, 'Tough luck.'"
Nikhil Shah, an immigration attorney in Los Angeles, said he almost lost his chance at a green card because he was misled by a paralegal who pretended to be an attorney and failed to properly submit his paperwork.
Shah, who is originally from India, said he could see how easily an immigrant who didn't speak English or know the law could get into trouble in court.
But Mark Krikorian, executive director of the Center for Immigration Studies, said immigrants need to take responsibility in choosing an attorney.
"The broad concept is completely valid. Deportation cases are not criminal proceedings, therefore nobody has a right to any kind of attorney — let alone a good one," said Krikorian, whose group favors limitations on immigration.
Justice officials have estimated the DNA rule would put 1.2 million DNA samples into the federal DNA database each year.
Thirteen states already collect DNA samples from some arrestees, according to a 2008 survey by the National Conference of State Legislatures. Nearly all limit the practice to arrests related to violent crimes or felonies.
At the federal level, officials will take a cheek swab for DNA from arrestees along with fingerprints regardless of the nature of the offense, according to the Department of Justice.
How many could be affected by the other rule wasn't clear. Immigration courts do not track how many people seek to reopen cases because of inadequate representation, said Susan Eastwood, a spokeswoman. The immigration court system is separate from the criminal courts and are overseen by the Department of Justice.
Legislative records show that as a senator, President-elect Barack Obama supported the laws that authorized the DNA collection.