Immigration is Different: Why Congress Should Guarantee Access to Counsel in All Immigration Matters
University of the District of Columbia Law Review, Vol, 17, p. 165 (Spring 2014)
55 Pages Posted: 13 Jun 2014 Last revised: 24 Jan 2015
Date Written: 2014
In America today, people can be detained, deported and exiled without ever talking to a lawyer. This article calls on Congress to act in the interest of justice to guarantee a right to appointed counsel to foreign nationals who are held in detention while waiting to appear in Immigration Court to challenge the government's efforts to remove them from the United States. It also calls for guaranteed access to counsel in all immigration matters, including administrative matters. In Part I, I discuss just a few reasons why a statutory right to counsel should be created for immigrants in removal proceedings -- and not just those languishing in detention. But access to counsel, whether government-funded or not, should also be guaranteed to persons involved in immigration-related administrative proceedings before the Department of Homeland Security. At present, DHS erects numerous barriers against even those immigrants who have retained private counsel to assist them in their applications for immigration benefits. In Part II, I discuss the multiplicity of government agencies involved in administering our nation’s immigrations laws; the difficulty in mastering the governing laws and policies; the ways in which these realities leave immigrants open to fraud by unscrupulous parties; and reasons why, at a minimum, the existence of barriers to access to counsel by noncitizens making applications for immigration benefits is contrary to law and good public policy. The article concludes with some suggested legislative changes along with ideas for funding appointed or low-cost counsel for immigrants. Assuming Congress ever passes comprehensive immigration reform legislation, such legislation should include provisions geared toward ensuring that low-cost, high quality legal counsel is within reach of the next generation of first-generation Americans as they attempt to navigate what is likely to be a complex process to secure lawful status. The fact is that immigration is different from other areas of civil law in its complexity and in the gravity of the stakes involved. For this reason, guaranteeing access to counsel in both removal proceedings and in DHS adjudications is both necessary and just.
Keywords: immigration, civil gideon, access to counsel, access to justice
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