Thursday, July 9, 2020

Time for an Absolute Right to Counsel in Removal Proceedings

Friends, in a recent op-ed for Slate, I write:

Under the cover of the pandemic, the Trump administration has closed the southern border indefinitely to desperate asylum seekers, suspended visas for skilled workers, threatened to deport foreign students, and generally increased the opacity and bureaucracy of the immigration system. Simultaneously, human rights organizations along the border or near ICE detention centers are pleading for volunteer attorneys across the country for one- or two-week stints to assist migrants seeking protection from persecution. When I’ve visited and volunteered at those sites in Tijuana, Nogales, and southern Texas, the truth is obvious to me: there is no way that we volunteers can adequately pick up the slack of doing quality work for more than a handful of individuals during our visits. After all, there are more than 60,000 migrants waiting to apply for asylum at the border right now, and more than 30,000 in ICE detention centers around the country—many operated by for-profit private prison companies. There are simply not enough of us. It is time to require the government to provide an immigration attorney to those who cannot afford one because of what’s at stake.


We are at a Gideon v. Wainwright moment in immigration law today. There is simply too much at stake in deportation hearings to allow the outcome to be determined by whether the respondent is wealthy enough to afford counsel or lucky enough to obtain competent pro bono counsel or a waitlist spot opens up in a legal services program. The Ninth Circuit Court of Appeals has come close to ordering court-appointed counsel for indigent children in removal proceedings. But that’s it. Just as the Supreme Court has stepped up to recognize that due process requires the appointment of counsel for all criminal defendants in Gideon as well as juveniles in delinquency proceedings, the courts must do the same for deportation respondents. If not, Congress needs to intervene to fund universal representation for immigrants facing removal.

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