Due Process Deportations

Abstract

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: more lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, federally funded counsel for immigrants would improve due process and fairness, as well as making immigration enforcement more efficient. This Article argues the opposite: federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ordered deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to effectively challenge the growth of the mass deportation regime. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.

Keywords: deportation, expulsion, expedited removal, reinstatement of removal, immigraton courts, right to counsel. immigration law, asylum, title 42 policy (42 USC 265)