Access to Counsel in Removal Proceedings: A Case Study for Exploring the Legal and Societal Imperative to Expand the Civil Right to Counsel

Abstract

Although empirical evidence shows that a foreign national's chances of receiving a favorable ruling doubles when an attorney represents him or her in removal proceedings, a unique confluence of history, legal tradition and policy climate have restricted immigrants' access to counsel to a ten-day window in which the immigrant may seek representation of his or her own choosing at no expense to the government. Although removal proceedings are, by definition, civil proceedings, they nevertheless involve physical detention and the possibility of permanent removal from the United States. These circumstances make the immigration system a unique case study for exploration of the civil right to counsel. This article argues that, in light of the high stakes involved and the significant obstacles to effective pro se participation, there exists a legal and social imperative to expand access to counsel in removal proceedings. Using a public policy analysis methodology, this article argues that the most immediate and effective way to do so is through a court-appointed special advocate model implemented through regulatory change.

Keywords: Immigration, Access to Counsel, Civil Rights, Removal Proceedings