Academic journal article Harvard Journal of Hispanic Policy

Earning Civil Rights: Why the Constitutional Right of Appointed Counsel Should Be Extended to Immigration Proceedings

Academic journal article Harvard Journal of Hispanic Policy

Earning Civil Rights: Why the Constitutional Right of Appointed Counsel Should Be Extended to Immigration Proceedings

Article excerpt


The United States has the highest incarceration rate of any nation in the world. (1) A significant contribution to this mass incarceration is the detention and removal of hundreds of thousands of the undocumented (2) through a "civil" (non-criminal) process for immigration offenses. (3) Currently, in criminal (non-civil) proceedings, all individuals, undocumented or not, are appointed an attorney at no charge to address an unequal power dynamic in which a government lawyer has superior legal knowledge and skill, compared to a self-representing litigant who may not have formal education or legal training, or may be indigent. (4) This is not the case for civil proceedings. Undocumented persons facing removal proceedings are not legally entitled to an attorney (5) and are often processed without legal representation. (6) This is despite the similarities to criminal proceedings where the person facing removal is detained in jail-like conditions (7) for substantial periods of time while they await their hearing. (8)

This essay aims to comment on emerging initiatives to challenge this un-civil practice. This essay (1) compares the treatment and processing of undocumented persons in immigration hearings to those facing proceedings within the US criminal justice system, (2) provides a brief historical review that describes the legal underpinning of one's right to counsel, (3) analyzes the current state of the law and scholarship to illustrate efforts to provide such representation in immigration proceedings, and (4) puts forth a new "earned rights" doctrine, granting Constitutional protections and fundamental civil rights to these undocumented non-citizens living in our society, despite conventional legal reasoning and public opinion holding that undocumented persons should not receive such rights because they entered the country without proper documentation.

Section I: Detention as Punishment

In academic or political forums, relatively little attention has been focused on the fact that, as a consequence of mass incarceration and immigration legislation, Latinos now constitute the most-represented ethnic group in federal courts, primarily as a result of immigration crimes. (9) Total annual expenditures for US law enforcement mechanisms are approximately $212 billion. (10) As many wrestle with the tremendous unequal impact of mass incarceration to African American populations, (11) they also need to consider an interwoven connection to immigration. (12) Today, more than 400,000 immigrants are detained annually. (13) This is the largest number of non-citizens detained in the world. (14) Indeed, immigration detainees represent the fastest-growing segment of the jail population in the United States, driven in large part by illegal reentry, a federal crime that now constitutes one-fourth of the federal docket. (15)

In recent decades the civil immigration system has decidedly shifted to be more punitive. (16) Such a conflation between immigration and criminal law has developed a relatively new area of legal scholarship described as "Crimmigration." (17) The Supreme Court has recognized and reaffirmed repeatedly that for "noncitizens facing expulsion, deportation is often a far more severe consequence than a criminal sentence." (18) The court has not, however, extended criminal procedure safeguards to expulsion and deportation. (19)

This did not happen overnight or by accident. Legislators contributed to shifting attitudes of the "immigration problem" by reinforcing a coordinated regulatory environment. (20) Not only have crimes subject to deportation increased, but recent legislation has mandated detention of criminal immigrants, limited grounds for relief, limited federal judicial review, and applied changes of law retroactively to crimes that were not crimes previously. (21) Until the 1980s, deportations were limited to a number of crimes, detention of undocumented individuals was less common, and criminal sanctions for immigration offenses were rare. …

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