Academic journal article Harvard Law Review

A Second Chance: The Right to Effective Assistance of Counsel in Immigration Removal Proceedings

Academic journal article Harvard Law Review

A Second Chance: The Right to Effective Assistance of Counsel in Immigration Removal Proceedings

Article excerpt

Every year, the United States deports hundreds of thousands of aliens. (1) Before deportation, aliens are entitled to an administrative removal proceeding at which they can challenge the grounds for their deportation or, more commonly, appeal for discretionary relief. Despite the harsh consequences of removal, the complexity of the immigration code, and the limited resources of many aliens, there is no comprehensive system for the provision of counsel to indigent aliens facing removal proceedings. Courts have held that immigration removal proceedings are not criminal in nature, so the Sixth Amendment right to counsel does not apply. Although courts have recognized that there could be a due process right to appointment of counsel for indigent immigrants should fundamental fairness so require, they never seem to grant such a right in practice. Nonprofit groups and pro bono lawyers represent some indigent aliens, but many aliens proceed pro se or hire the most inexpensive private lawyer they can find.

In response to this confusion, this Note does not argue for a categorical right to appointment of counsel in immigration removal proceedings, an argument that has been advanced many times to no avail. Instead, this Note explores the narrower but related issue of the right to effective assistance of counsel when counsel is present. The Sixth Amendment provides criminal defendants not only with the right to appointed counsel but also with the right to effective counsel. In the immigration context, courts have recognized a due process right to the effective assistance of counsel, even when the alien retains her own lawyer. The Seventh Circuit has questioned the existence of this right, however, and has argued that the Constitution does not protect aliens from mistakes of their counsel when the Sixth Amendment does not apply. (2) Recently, the Fifth Circuit also questioned the constitutional basis of the right. (3)

This Note explores the development of the right to effective assistance of counsel in immigration removal proceedings and argues that the right is correctly rooted in due process considerations of fundamental fairness. Part I describes the constitutional contours of the right to appointed counsel in criminal, civil, and immigration proceedings. Part II discusses the related right to effective assistance of counsel. Part III compares two theories about the nature of the right to effective assistance of counsel in immigration proceedings, and Part IV develops a more thorough rational for the right than has been previously articulated by the courts.

I. THE RIGHT TO APPOINTED COUNSEL

A. The Right to Counsel in Criminal Proceedings

The constitutional right to appointed counsel in criminal proceedings is well established. The modern interpretation of the Sixth Amendment right to counsel (4) is as a prophylactic rule requiring appointment of counsel to indigent defendants. No such rule exists in the immigration context. Before the Sixth Amendment was incorporated against the states, however, courts used a due process analysis to evaluate right to counsel claims. Thus, the history of the due process right to counsel in the immigration context has strong roots in the development of the right to counsel in criminal cases.

Before incorporation, the Supreme Court found that certain state criminal defendants had a Fourteenth Amendment due process right to counsel. In Powell v. Alabama, (5) the Supreme Court held that the "Scottsboro boys," seven indigent black youths accused of rape, were entitled to the "effective appointment" of counsel under the Due Process Clause. (6) The Court limited the holding to the facts of the case by emphasizing that "in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court ... to assign counsel for him. …

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