Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An Immigration Gideon for Lawful Permanent Residents?

Kevin R. Johnson

University of California, Davis - School of Law

December 6, 2012

Yale Law Journal, Forthcoming
UC Davis Legal Studies Research Paper No. 316

Fifty years ago, the Supreme Court decided Gideon v. Wainwright, the landmark case that constitutionally guaranteed counsel to defendants in criminal prosecutions in the United States. In evaluating the ripple effects of that decision, it is critical to remember that the Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants.

As is often true for dichotomies, the differences between civil and criminal proceedings blur at the margins. There are, for example, civil cases where the stakes are extraordinarily high, so high that they arguably approximate the life and liberty interests implicated by a criminal prosecution. For example, a loss of public benefits, or potential eviction from an apartment, can have devastating impacts on the lives of the indigent. The assistance of a lawyer obviously can make all the difference to the ultimate outcome of such high stakes civil proceedings.

This Essay studies the right to counsel in a particular category of civil cases – immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. The existing scholarship analyzing the right of counsel for noncitizens in removal proceedings generally has highlighted the great need for representation, as well as the weighty interests at issue, but has not fully fleshed out the legal arguments for guaranteed representation. Alternatively, some commentators argue for a right to counsel for narrow categories of particularly sympathetic noncitizens facing removal, such as detained immigrants, asylum-seekers, or juveniles.

In contrast, this Essay contends that classic Due Process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in, as well as the likelihood of having the deepest community ties to, the United States. Temporary visitors and undocumented immigrants generally lack such a legal interest and community ties. Recent developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.

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Date posted: December 6, 2012 ; Last revised: January 30, 2013

Suggested Citation

Johnson, Kevin R., Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An Immigration Gideon for Lawful Permanent Residents? (December 6, 2012). Yale Law Journal, Forthcoming; UC Davis Legal Studies Research Paper No. 316. Available at SSRN: https://ssrn.com/abstract=2186245

Contact Information

Kevin R. Johnson (Contact Author)
University of California, Davis - School of Law ( email )
Martin Luther King, Jr. Hall
400 Mrak Hall Drive
Davis, CA 95616-5201
United States
530 752 0243 (Phone)
530 752 7279 (Fax)

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