'Death is Different' and a Refugee's Right to Counsel

33 Pages Posted: 28 Oct 2008 Last revised: 26 Jan 2009

See all articles by John R. Mills

John R. Mills

Phillips Black Project

Kristen Echemendia

Cornell University - Law School

Stephen Yale-Loehr

Cornell University - Law School

Date Written: January 13, 2009

Abstract

This article asserts that there is a due process right to appointed counsel at government expense for non-citizens who file cases where persecution and death of the petitioner may result after removal - namely claims for asylum, relief under the Convention Against Torture, and restriction on removal. Due process protects all persons' interests in life, liberty and property, regardless of their legal status within the country. Where death may result from an erroneous denial of relief, a non-citizen's interest in life and liberty is directly implicated.

As has been aptly stated in the criminal context, "death is different." Where death is on the table, there is a heightened need for reliability and accuracy. The article analogizes from death penalty cases to argue that due process requires a right to appointed counsel in cases concerning indigent non-citizens applying for asylum, relief under the Convention Against Torture, or restriction on removal. The failure of 8 U.S.C. section 1362 to provide such a right makes it unconstitutional.

Note: This version (Jan. 13, 2009) has been slightly updated from our prior version to reflect the Attorney General's decision in Matter of Compean, 24 I. & N. Dec. 710 (Att'y Gen. 2009).

Keywords: immigration, refugees, due process, right to counsel, death penalty

JEL Classification: K39

Suggested Citation

Mills, John R. and Echemendia, Kristen and Yale-Loehr, Stephen, 'Death is Different' and a Refugee's Right to Counsel (January 13, 2009). Cornell Legal Studies Research Paper No. 1290382, Available at SSRN: https://ssrn.com/abstract=1290382 or http://dx.doi.org/10.2139/ssrn.1290382

John R. Mills

Phillips Black Project ( email )

United States

HOME PAGE: http://phillipsblack.org

Kristen Echemendia

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
14853-4901

Stephen Yale-Loehr (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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