Congress is off to an optimistic though rancorous start on
comprehensive immigration reform. Advocates across the political
spectrum recognize the need to address the arcane and often
incomprehensible set of rules that govern legal and illegal
immigration in the United States. We must also continue to honor our
treasured commitment to refugee protection.
But a crucial issue that cries out for action is the need to
ensure that any person detained in the context of immigration
enforcement must have access to legal counsel. America cannot
continue to propound the rule of law abroad while denying upward of
400,000 individuals (the number deported in 2012) the opportunity to
be meaningfully informed of legal charges against them and of their
options to steer through the legal maze.
Due to Supreme Court precedent from the 1880s that arose in the
context of viral anti-Chinese sentiment, it has been accepted
doctrine that an immigration removal proceeding is civil rather than
criminal in nature. That means only limited access to counsel.
Congress has since determined that individuals in removal
proceedings are allowed representation by counsel, but not at the
expense of the government. That possibility creates the opening to
rectify this injustice. Congress should change the law to provide
access to counsel at government expense if necessary for those in
Under the present scheme even detained children and the mentally
disabled are not provided with counsel, except for the scarce non-
profit resources and occasional attorney from an immigration project
who may be able to step in. But a handful of such lawyers cannot
provide counsel to hundreds of thousands of detained individuals.
Victims of sex trafficking, genuine refugees, and torture survivors
are among those held without possibility of ever finding legal
Those who are apprehended and detained during the course of
removal hearings are often shipped thousands of miles away from
families, doctors, and friends and warehoused in remote private
facilities in the desert such as the Eloy and Florence detention
centers in Arizona. A migrant ripped from her community in New York
is likely to end up in Florida.
Government statistics show that only about 17 percent of people
detained on charges of deportation ever have the benefit of counsel.
The cost of such detention averages $40,000 annually for one
individual. Most often the detained have no way of understanding the
charges against them and whether there is any meaningful relief from
deportation for which they may be eligible.
Without counsel they are certainly hindered in gathering
documents, evidence, and witnesses who could appear in court and
demonstrate to a judge how they qualify for asylum or legal
residency and why they should be allowed to remain in the United
States. Several stories in recent years tell of deportations of US
citizens who didnt have the wherewithal or understanding of the
system in order to convince a judge that they were indeed US