ACSBlog: The Blog of the American Constitution Society

Over the course of more than 120 years, two overarching themes have emerged in U.S. jurisprudence regarding the interplay between immigration control and the rights of non-citizens. On the one hand, the political branches of the federal government enjoy “plenary” authority to determine who can enter, who must leave, and who can stay. On the other, constitutional protections extend to “people” or “persons,” including non-citizens.

Not every restriction on immigrants implicates the government’s power to regulate immigration, and our immigration laws must be enforced in ways that respect constitutional norms. As the Supreme Court said in 2001, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.”

Most deportation proceedings – now called “removal” – suffer from a fundamental deficiency. Immigrants cannot effectively represent themselves in these complex and consequential proceedings, yet, even in the most meritorious cases, most have no choice but to proceed pro se because of the absence of appointed counsel.

Under federal law, persons facing removal enjoy a right to representation, but “at no expense to the government.” Notwithstanding this statutory restriction, some federal courts have recognized that due process might necessitate government-funded counsel in the right set of circumstances. More commonly, however, federal courts appoint pro bono counsel in complex cases, mooting right-to-counsel claims.

According to the Department of Justice, more than one-half of the persons in removal proceedings lack legal representation. As confirmed by a federally-funded program that provides legal orientation to detained immigrants, most persons without counsel have no viable claim for relief and, when provided an independent orientation, concede to removal, saving the government significant expense. However, others have compelling claims based on U.S. citizenship, fear of persecution, likelihood of torture, long-term lawful permanent residency and family ties in the United States. As Justice Brandeis wrote nearly 90 years ago, deportation can result “in loss of both property and life; or of all that makes life worth living.”

Recent studies have documented the decisive role that legal counsel plays in assuring that vulnerable immigrants secure the relief available to them under U.S. law. These studies have found that represented asylum-seekers, compared to those without representation, prevail in their cases at rates:

• Four to six times higher (1999) (“The State of Asylum Representation: Ideas for Change”);

• Six times higher (detained asylum-seekers in 2003) Revisiting the Need for Appointed Counsel”);

• More than 12 times higher (asylum-seekers caught at U.S. ports-of-entry and determined to have a “credible fear” of persecution) (“Report on Asylum Seekers in Expedited Removal, Volume II: Expert Reports”);

• Five times higher (1994 to early 2005) (“TRAC Reports”).

A comprehensive report published in 2008 concluded that “whether or not an asylum seeker is represented in court is the single most important factor affecting the outcome of her case.” This study also documented gross disparities in approval rates by individual judges within the same immigration courts and between judges in different courts.

The disparities between represented and unrepresented immigrants have come to light at a time of wholesale expansion of the Department of Homeland Security’s (DHS’s) scandalous detention system. DHS detains more than 32,000 immigrants per night in a hodgepodge of hundreds of state and local jails, for-profit prisons, and federal facilities. Not surprisingly, detainees secure representation and obtain relief at lower rates and abandon their claims at higher rates than non-detained immigrants.

In his letter from Birmingham jail, Martin Luther King, Jr. wrote that “injustice anywhere is a threat to justice everywhere.” It is a great injustice that poverty, rather than the strength of a legal claim, determines who can remain in the United States and who must be separated from their families and livelihood, or returned to a nation where they risk persecution, torture, and death. Due process requires government-appointed counsel for indigent persons in removal proceedings. Justice demands it.