A Better Way: Uncoupling the Right to Counsel with the Threat of Deportation for Unaccompanied Immigrant Children and Beyond

Authors

Laura Barrera

Abstract

(Excerpt)

The stakes could not be higher in immigration court—families are separated; people are banished from their communities with little hope of ever legally returning; judges relegate individuals to seemingly arbitrary and indefinite detention in remote locations. Each of these hardships—and more—flow from the threat of deportation. As the Supreme Court noted in 1922, deportation “may result . . . in . . . all that makes life worth living.”

As has been the unfortunate norm in civil proceedings, many individuals face these trials without an attorney by their side because while the law states that respondents in immigration court have the right to be represented by an attorney, attorneys will not be provided at the expense of the government in all but a few, narrow circumstances. Thus, individuals with little legal experience and who may not be fluent in English will find themselves facing experienced attorneys from the federal government—and all of this occurs before immigration judges who, more often than not, are predisposed not to recognize the humanity of respondents or take seriously the hardships that their decisions may impose.

In terms of complexity, immigration law is often said to be second only to tax law. Even seasoned professionals regularly encounter issues they have not seen before—and on top of that, immigration professionals must navigate the consistently changing administrative landscape and accede to the whims of the Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”), which can change procedures and case law at will in ways that have a significant impact on immigration law practice. Thus, it is unsurprising that attorneys and advocates who have seen the monumental power imbalance between unrepresented respondents and government attorneys play out in court to have pushed for policies advocating for universal representation in immigration court proceedings. The reasoning makes sense—given these circumstances, it is highly unlikely that an unrepresented respondent will win a favorable outcome in immigration court, therefore, to have a chance at achieving justice, all respondents should have access to free legal counsel in their removal proceedings. Many argue that this is what due process requires—others argue that it is just the right thing to do for our immigrant neighbors, friends, and family—even if it is not compelled by due process.

While I agree that every person in removal proceedings should have access to free legal representation, I propose that there are several major issues with the traditional advocacy pushes for universal representation in removal proceedings. First, I believe the traditional approach to universal representation in immigration court is much too narrow in terms of the legal help that should be afforded to immigrants. Second, I believe it is based on the false premise that justice is generally achievable in immigration court only if one has an attorney.