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

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