Academic journal article Harvard Law Review

The Right to Be Heard from Immigration Prisons: Locating a Right of Access to Counsel for Immigration Detainees in the Right of Access to Courts

Academic journal article Harvard Law Review

The Right to Be Heard from Immigration Prisons: Locating a Right of Access to Counsel for Immigration Detainees in the Right of Access to Courts

Article excerpt


The United States government holds 39,000 people in immigration detention every day. (1) In 2016, U.S. Immigration and Customs Enforcement (ICE) detained 359,520 people. (2) And those numbers are only increasing: ICE requested a budget for 52,000 detention beds in 2019, (3) and immigration arrests have already risen by 30% under the Trump Administration. (4) Detainees are fighting against exile from their American home. Some may be quite literally fighting for their lives, seeking asylum from violence in their countries of origin. And the law that they use to fight is complex: in addition to the labyrinth of immigration defenses and relief, many detainees will have to bring a habeas petition just to get a bond hearing, no matter how long they have been locked up.

Unlike criminal defendants, noncitizens (5) have no Sixth Amendment right to government counsel in immigration proceedings--only a statutory right to retained counsel. But among those detained, only 36% of noncitizens who seek a lawyer can find one. (6) Between lack of financial resources and scarce ability to locate a lawyer, only 14% of detainees ultimately have counsel for their defense against removal proceedings. (7)

And finding a lawyer is not the end of the battle. Represented detainees face outsized obstructions to communicating with their counsel. (8) Many detention centers are in extremely remote locations, forcing attorneys to travel for many hours to meet with their clients. (9) Once attorneys arrive, they often wait for hours for a visitation room to become available. Detention facilities have taken to forcing attorneys to schedule appointments days in advance and preventing them from emergency visits. (10) ICE sometimes even transfers detainees to facilities in different states without first notifying their attorneys. (11) When detainees try to reach their attorneys for aid, they often face costly telephone charges, long waits for access to phones, and calls that automatically cut off after short time periods. They may find themselves brought to expedited immigration proceedings without the chance to tell their attorneys, or face abject prison conditions with no ability to report them.

Intuitively, these circumstances suggest that noncitizens are not being afforded adequate process in governmental attempts to remove them from the country. Like other civil defendants, noncitizens have tried to fit a right to counsel into their procedural due process protections. But legal attempts to challenge these policies have encountered unique roadblocks in the immigration context. Noncitizens have some statutory process rights: the right to retain counsel at private expense (12) and the right to a full and fair hearing. (13) The Board of Immigration Appeals (BIA) interprets these statutes and is owed judicial deference. Mindful of Congress's plenary power over immigration, courts are reluctant to impose any constitutionally mandated process that is broader in scope than the BIA has held Congress to intend by statute. (14) Therefore, although arguments for a right to counsel at government expense under the full and fair hearing prong of due process have existed for at least ten years, (15) they have usually been successful only when combined with other freestanding statutory obligations. (16) The result is that noncitizens' statutory right to retained counsel and its due process counterpart are read extremely narrowly: usually counsel must be entirely physically absent or entirely prevented from representing a noncitizen before a court will find a violation. (17)

But when the government locks someone up for its own ends and limits access to the outside world, it cannot frustrate that person's legal rights. The courts have long recognized this principle through the constitutional right of access to courts. At its narrowest, the right protects a detainee's access to a mechanism for challenging her confinement, and at its broadest it requires detention authorities to provide a detainee with the necessary tools to fight her legal claims. …

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