Friday, April 14, 2017
Posted at the request of Kari Hong and Stephen Manning:
"We are authoring an amicus brief supporting access to private counsel in expedited removal. In United States v. Peralta-Sanchez, 847 F.3d 1124 (9th Cir. 2017),the Ninth Circuit (2-1) held that there is no statutory or constitutional right for non-citizens to have access to counsel in expedited removal proceedings. The brilliant federal defender Kara Hartzler argued the case and filed an en banc petition.
This amicus brief filed by law professors, practitioners, and clinicians supports the request of Mr. Peralta-Sanchez for a recognized right to access to counsel.
The amicus brief makes three points (1) There is a significant private interest at stake given that expedited removal extends to those with claims to potential remedies (including asylum seekers and long-term residents), to those whom are mistakenly found not to have status when they are citizens or lawful permanent residents, and to those who live within 100 miles of the border, which reaches 66% of the U.S. population; (2) The right to counsel will improve accuracy of the determinations made in expedited removal proceedings to correct these recent and documented errors. A 2016 study documented a substantial rate of success for immigrants with representation compared to those without in other immigration proceedings. All reasonable inferences then support that the presence of counsel will ensure that those entitled to protections due in expedited removal proceedings will receive then; (3) The costs to the Government if non-citizens are permitted to hire private counsel are minimal. Any delay arising from the adjudication of expedited removal proceedings form the presence of counsel arises as individuals entitled to protections simply receive them. There is no compulsion for the Government to incur the costs of detention when alternatives to detention are available, less costly, more humane, and as effective. There is no compulsion for the Government to hire a new corps of attorneys to contest these adjudications. The USCIS routinely processes claims by non-citizens, including those with private counsel. No disadvantage to the Government has occurred not to contest these proceedings, which include affirmative asylum claims, adjudication applications, and naturalization applications.
The amicus will be filed on Monday, April 17. The final draft will be completed over the weekend and circulated when finished. For those who wish to sign onto the brief, please sign here.
The deadline for signing will be 10:00 am ET on Monday, April 17."