Immigration Rights and Immigration Enforcement

Harvard Law Review, April 2013 | Go to article overview

Immigration Rights and Immigration Enforcement


A. Introduction

There are few, if any, civil contexts in which the presence of competent counsel is as critical as it is in removal proceedings. (1) The stakes are enormous; the field of law, exceedingly complex; and the barriers--such as noncitizens' language difficulties and lack of familiarity with the legal system--considerable. Indeed, the conclusion of several recent studies that representation by counsel is among the most important factors affecting the outcome of immigration proceedings is significant, but unsurprising. (2) And yet, available figures paint a dire picture of both the availability and quality of immigrant representation in removal proceedings. Of the approximately 300,000 immigration proceedings completed each year, only about half involve noncitizens with representation. (3) And when noncitizens do retain counsel, that counsel can be of dubious quality: a 2008 survey, for example, reported federal and state judges' belief that immigration is the area of civil practice "in which the quality of representation [is] lowest." (4) "Crisis" is not too strong a word to describe the current state of representation in removal proceedings.

This Chapter traces recent developments affecting legal representation in removal hearings, proceeding in three sections. The first section identifies and examines two developments--the proliferation of immigrant detention and the exacerbation of legal complexity--that have undercut the quality of, and access to, legal representation. The second section turns to two recent Supreme Court decisions, Padilla v. Kentucky (5) and Turner v. Rogers. (6) These cases have given new life to the argument for a right to counsel in removal proceedings, most importantly by undermining one of the key conceptual barriers to that right--namely, that deportation is a civil sanction rather than a criminal punishment. Finally, the third section assesses how the law has evolved and should evolve in response to the above developments. Specifically, this section proposes a right to appointed counsel for three classes of non-citizens--lawful permanent residents, the mentally ill, and juveniles--and suggests other means of strengthening representation in removal proceedings.

B. Representation: Crucial, yet Stymied

Removal proceedings have long been treated as falling under the civil paradigm. (7) The Sixth Amendment attaches only to criminal proceedings; thus, noncitizens in removal proceedings possess no right to appointed counsel. (8) Still, removal hearings are subject to constitutional and statutory requirements that bear on a right to counsel. Under the Immigration and Nationality Act (9) (INA), noncitizens are entitled to "the privilege of being represented" by counsel, but "at no expense to the Government." (10) Moreover, longstanding Supreme Court doctrine entitles noncitizens to Fifth Amendment due process protections in deportation proceedings (11) (though not in exclusion hearings (12)). Some federal appeals courts have interpreted the Fifth Amendment as also affording noncitizens who are able to obtain counsel a right to effective assistance of counsel, (13) but the Supreme Court has not yet addressed whether that right exists.

This section discusses two developments that have detracted from quality representation and rendered the presence of competent counsel ever more important: the expansion of immigrant detention and the increasing complexity of immigration law.

1. Immigrant Detention.--Immigrant detention is by no means a recent development; its tremendous growth, however, is. Courts and commentators alike have observed the adverse impact of detention on the right to counsel, and recent empirical work has helped substantiate this connection.

It is no overstatement to say that the use of immigrant detention has exploded over the last two decades. (14) In 1994, the government held approximately 6000 noncitizens in detention on any given day and detained about 81,000 over the course of the whole year; by 2008, those figures had swelled to around 33,000 and 380,000, respectively. …

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