27 Pages Posted: 7 Nov 2018 Last revised: 1 Feb 2019
Date Written: October 31, 2018
In an era in which there is little good news for immigrant communities and even holding the line has become an ambitious goal, one progressive project has continued to gain steam: the movement to provide universal representation for non-citizens in removal proceedings. In the immigration field, “universal representation” refers to a system of appointed counsel that provides representation to indigent non-citizens facing deportation regardless of the apparent merits of their case. This model has proven a transformative change, particularly given the absence of any recognized right to government-funded counsel. In recent years, cities and counties throughout the nation have launched universal representation programs in the immigration arena, and the future promises broader expansion. But as this effort grows, it must confront challenges from within: the sort-of supporters who seek to limit this representation system’s coverage in a number of ways, some of which may not merely change the scope of the program, but the core of the project itself.
As municipalities and counties create such systems, they must consider local concerns and make decisions about the scope of each system’s coverage. While these choices have given rise to several types of limitations, the most controversial is an eligibility bar that denies counsel to those with certain criminal convictions. This essay is the first to provide current and historical context for the universal representation model in the immigration system, and ultimately argues that, while some limits on the scope of the coverage may be justifiable, restrictions like conviction-based eligibility carve-outs threaten the most basic underpinnings of the universal representation project. At minimum, that type of restriction stakes out an unprecedented position in our nation’s history and conflicts with long held principles regarding when and why it is important to provide publicly funded counsel. Far worse, it portends a denial of access to procedural protections for those facing one of the harshest exercises of state power—which is among the most significant harms that universal representation is intended to prevent.
Keywords: Universal representation, immigration, appointed counsel
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