Aliens’ Right to Counsel in Removal Proceedings: In Brief
Released: 2016-03-17T00:00:00

T he scope of aliens' right to counsel in removal proceedings (i.e., proceedings to remove them from the United States) is a topic of recurring congressional and public interest. This topic is complicated, in part, because the term right to counsel can refer to either (1) the right to counsel of one's own choice at one's own expense, or (2) the right of indigent persons to counsel at the government's expense. A right to counsel can also arise from multiple sources, including the Fifth and Sixth Amendments to the U.S. Constitution, the Immigration and Nationality Act (INA), other federal statutes, and federal regulations. Further, in some cases, courts have declined to recognize a categorical right to counsel, applicable to all aliens in removal proceedings, but have opined that individual aliens could have a right to counsel at the government's expense on a case-by-case basis because of their specific circumstances. In addition, federal, state, and local governments may provide counsel to aliens in circumstances where they have not been seen as having a legal right to counsel.

As used here, the term removal proceeding refers to formal proceedings before an immigration judge under Section 240 of the INA. There are other types of proceedings that can result in an alien being removed from the United States—most notably, expedited removal under Section 235 of the INA. However, insofar as these other types of proceedings may involve aliens who have few, if any, ties to the United States, the aliens subject to them could be seen to lack constitutional or statutory rights to counsel, and thus this report does not address these other forms of removal proceedings.

This report provides an overview of the various legal authorities governing aliens' right to counsel—as that term is broadly understood—in removal proceedings. It does not address aliens' right to counsel in criminal proceedings, the outcomes of which could potentially affect their ability to remain in the United States under immigration law. The report also does not address effective assistance of counsel.

Right to Counsel at the Alien's Expense

Aliens have generally been seen as having both constitutional and statutory rights to counsel at their own expense in formal removal proceedings. The constitutional right is grounded in the Fifth Amendment's guarantee of due process, while the statutory right arises from the INA and related provisions of immigration law. The regulations implementing these statutory provisions further establish these and other rights pertaining to counsel in removal proceedings.

Fifth Amendment

The Fifth Amendment guarantees that "[n]o person ... shall be deprived of life, liberty, or property" without due process of law. Aliens—including those who have entered or remained in the United States in violation of federal immigration law—have been found to be encompassed by the Fifth Amendment's usage of "person," and removal can be seen as implicating an alien's interest in liberty. Thus, courts have historically viewed access to counsel at one's own expense as required to ensure "fundamental fairness" in formal removal proceedings. For example, in Leslie v. Attorney General , the U.S. Court of Appeals for the Third Circuit (Third Circuit) noted that "although the Fifth Amendment does not mandate government-appointed counsel for aliens at removal proceedings, it indisputably affords an alien the right to counsel of his or her own choice at his or her own expense." Similarly, in United States v. Charleswell , the Third Circuit described aliens' right to counsel at their own expense in formal removal proceedings as "so fundamental to the proceeding's fairness" that a denial of this right could "rise to the level of fundamental unfairness." Aliens' Fifth Amendment right to counsel at their own expense has also been seen as underlying the INA's provisions granting aliens a right to counsel at their own expense, discussed below, although courts have generally treated actions that deprive aliens of counsel at their own expenses as violating the statute, not the Constitution.

Then-Attorney General Mukasey departed from this general view in his 2009 decision in Matter of Compean , finding that aliens have no Fifth Amendment right to counsel at their own expense in removal proceedings. This finding formed, in part, the basis for his articulation of a new standard for assessing claims of ineffective assistance of counsel in removal proceedings, since aliens cannot be said to have a constitutional right to effective assistance of counsel in removal proceedings if they lack any constitutional right to counsel in these proceedings. However, this decision was vacated later in 2009 by then-Attorney General Holder. Mr. Holder's decision in Matter of Compean is primarily concerned with the standards for assessing claims of ineffective assistance of counsel in removal proceedings, but the vacatur apparently encompasses Mr. Mukasey's findings about aliens' Fifth Amendment right to counsel at their own expense.

INA and Other Provisions of Immigration Law

Various provisions of the INA and other immigration-related statutes, as well as their implementing regulations, provide aliens with a right to counsel at their own expense in removal proceedings. Section 292 of the INA generally governs aliens' right to counsel, and provides that,

In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel ... as he shall choose.

However, other provisions of the INA or related statutes address the rights of particular categories of aliens (e.g., children), or aliens' rights in particular types of removal proceedings (e.g., expedited removal under Section 238 of the INA). These statutory provisions also afford aliens certain other rights as to counsel in removal proceedings. Specifically, they (1) impose restrictions upon when hearings in removal proceedings may be held, so as to permit aliens the opportunity to obtain counsel; (2) require that aliens against whom removal proceedings have been initiated be furnished with lists of persons available for pro bono representation; and (3) establish additional protections for classes of aliens who are seen as particularly "vulnerable" (e.g., unaccompanied minors, "mentally incompetent" individuals ). Many of these statutory provisions describe aliens' retention of counsel at their own expense as a "privilege." However, the implementing regulations are drafted so as to suggest that there is a legal right to counsel at the alien's expense, and numerous courts have construed the INA as establishing a statutory right to counsel at the alien's expense.

These and other courts have generally viewed aliens' statutory right to counsel at their own expense as satisfied if the immigration judge inquires whether the alien wishes counsel, gives any alien wishing counsel a reasonable period of time in which to obtain it, and determines that any waivers of this right are knowing and voluntary. On the other hand, violations of aliens' right to counsel at their own expense have been found in specific circumstances where (1) the alien was not advised of his/her due process rights, including the right to counsel, in a language s/he could understand; (2) the alien was transferred to a remote facility without notice to his/her attorney; (3) the government exercised "unexplained" haste in beginning removal proceedings; (4) the alien was prevented from consulting with counsel prior to signing a voluntary departure form; (5) the alien was denied access to basic written legal materials; and (6) the alien was denied a change of venue to allow the retention of counsel. Courts in some jurisdictions have, however, found that violations of aliens' statutory right to counsel at their own expense are not, in themselves, grounds for reopening removal proceedings or otherwise permitting the alien to re-litigate his/her removability or eligibility for relief from removal. Instead, courts in these jurisdictions have generally required that aliens show that any violation of their statutory rights was "prejudicial" in that the outcome of the proceeding could have been different absent the violation. For example, in United States v. Reyes-Bonilla , the U.S. Court of Appeals for the Ninth Circuit found that an alien was not entitled to have his conviction for violating 8 U.S.C. §1326 (being a deported alien found in the United States without permission) overturned due to a violation of his statutory rights because he could not show the requisite prejudice resulting from such violation. In so finding, the Ninth Circuit noted that the immigration judge had failed to provide Reyes-Bonilla the requisite notice of his rights—including his right to counsel at his own expense—in a language he could understand during his removal proceedings. However, it did not view this error as having affected the outcome of the proceeding because Reyes-Bonilla's ability to obtain relief from removal was "severely limited," regardless of whether he had counsel, due to his "prior convictions for aggravated felonies."

Right to Counsel at the Government's Expense

Aliens, as a category, have generally not been seen as having either constitutional or statutory rights to counsel at the government's expense in administrative removal proceedings. The Sixth Amendment right to appointed counsel for indigent persons applies only in criminal proceedings, not in civil proceedings such as removal. The INA and its implementing regulations also do not purport to provide a right to counsel at the government's expense for any aliens except those subject to removal proceedings before the Alien Terrorist Removal Court, which has not been used to date. Nonetheless, individual aliens could be found to have a right to counsel at the government's expense based on the Fifth Amendment's guarantee of due process or Section 504 of the Rehabilitation Act, depending upon the facts and circumstances of the case.

Sixth Amendment

Courts have repeatedly declined to find that indigent aliens have a Sixth Amendment right to counsel at the government's expense in removal proceedings. Those who would afford such a right to aliens often emphasize the serious consequences that being removed from the United States can have for aliens. They sometimes also note that immigration law has become increasingly intertwined with criminal law (a phenomenon sometimes referred to as "crimmigration" ). However, such arguments have consistently proved unavailing because the Sixth Amendment explicitly refers to "the Assistance of Counsel" in "criminal proceedings," and removal proceedings are civil in nature. Thus, courts have deemed it appropriate that aliens subject to removal receive a different degree of protections than criminal defendants because removal proceedings are civil, not criminal.

Aliens are, however, entitled to counsel at the government's expense in criminal proceedings to the same extent as citizens. This can include any criminal proceedings that may also result in a judicial order of removal, although such orders are rarely sought.

INA and Other Provisions of Immigration Law

The INA also generally does not purport to afford aliens a right to counsel at the government's expense in removal proceedings. Alone among the provisions of the INA, 8 U.S.C. Section 1534 states that "[a]ny alien financially unable to obtain counsel shall be entitled to have counsel assigned to represent" him or her. However, this provision applies only to aliens removed by the Alien Terrorist Removal Court, a forum which has not been used to date. All the other provisions of the INA and their implementing regulations specify that aliens' right to counsel shall be "at no expense to the government."

In fact, some have suggested that the INA's provisions regarding counsel "at no expense to the government" bar the government from providing or otherwise paying for aliens' counsel in removal proceedings. Those making this argument seemingly construe the language about aliens' "privilege" to have counsel at their own expense to mean that the government may not pay for counsel for them. However, an argument could be made that these provisions only restrict aliens' ability to claim an entitlement to counsel at the government's expense, and do not preclude the government from paying for aliens' counsel pursuant to other provisions of law or at its discretion. Indeed, as previously noted, the federal government—as well as certain local governments—have adopted programs to provide counsel for at least certain aliens in removal proceedings.

Fifth Amendment

In contrast, several federal courts of appeals have opined that the Fifth Amendment's guarantee of due process could require the appointment of counsel for individual aliens who are incapable of representing themselves due to "age, ignorance, or mental capacity." The earliest and most frequently cited example of this appears to be the U.S. Court of Appeals for the Sixth Circuit's 1975 decision in Aguilera-Enriquez v. Immigration and Naturalization Service . There, the court rejected the argument that Section 292 of the INA—which provides for aliens to be represented by counsel in removal proceedings at their own expense—unconstitutionally deprived aliens of their right to counsel. In so doing, the court indicated that it viewed the Due Process Clause of the Fifth Amendment to require the appointment of counsel "[w]here an unrepresented indigent alien would require counsel to present his position adequately to an immigration judge." However, the court viewed the entitlement to appointed counsel as being determined on a case-by-case basis, and, in this case, it concluded that there was "no defense for which a lawyer would have helped."

There are certain contexts wherein courts have recognized a Fifth Amendment right to appointed counsel for all persons subject to particular types of proceedings, regardless of their individual circumstances. However, courts have, to date, declined to take this approach to aliens—or even particular subcategories of aliens—facing removal proceedings. A federal district court in Washington expressly rejected the argument that unaccompanied alien children (UAC), as a class, have a due process right to appointed counsel in its 2002 decision Gonzalez Machado v. Ashcroft . In so doing, the court indicated that the "[c]ase law does not demonstrate ... that the right to counsel is on an inevitable path of outward expansion," a factor which the court viewed as significant since, in its view, the plaintiff would have to show that the precedents finding that aliens have no right to counsel at the government's expense in removal proceedings have been "eroded" by subsequent decisions or "become anachronistic" in order to prevail in the face of the government's motion to dismiss the complaint. More recently, though, in its 2015 decision in J.E.F.M. v. Holder , another federal district court in Washington denied the government's motion to dismiss a similar challenge brought by UAC alleging that the failure to provide them with counsel at the government's expense deprived them of due process in violation of the Fifth Amendment. The court did so, in part, on the grounds that "[a] fundamental precept of due process is that individuals have a right to be heard at a meaningful time and in a meaningful manner before being condemned to suffer grievous loss of any kind," and UAC cannot effectively exercise this right without the assistance of counsel.

It is important to note, however, that the J.E.F.M. decision addressed only the federal government's motion to dismiss the aliens' complaint for failure to state a claim upon which relief can be granted, and did not affirmatively require the federal government to provide counsel to the plaintiff UAC at the government's expense. To date, there does not appear to be any published decision in which a court has found that the Due Process Clause requires the appointment of counsel for an individual alien.

Rehabilitation Act

Section 504 of the Rehabilitation Act has also been construed to require the appointment of "qualified representatives"—a term which includes (but is not limited to) legal counsel—for aliens who are "mentally incompetent" to represent themselves in removal proceedings. Section 504 states, in relevant part, that no "qualified individual with a disability" may "be excluded from participation in, be denied the benefits of, or be subjected to discrimination ... under any program or activity conducted by any Executive agency," and has been construed to mean that agencies cannot deny qualified individuals with disabilities any "reasonable accommodation" that they might need in order to enjoy meaningful access to the benefits of public services. As used here, disability includes "a physical or mental impairment that substantially limits one or more major life activities of such individual."

In the litigation that gave rise to this finding, Franco-Gonzales v. Holder , the government apparently did not contest that the plaintiffs—who included aliens found incompetent to stand trial for criminal offenses—had established a prima facie case under Section 504. Instead, the plaintiffs and the government disagreed over whether current statutory and regulatory protections, discussed above, suffice to protect the rights of "mentally incompetent" aliens in removal proceedings and, if not, what would constitute a reasonable accommodation. The court agreed with the plaintiffs that the existing statutory and regulatory protections are inadequate, in part, because "near relatives" or "friends" acting as the alien's "representatives" cannot be compelled to appear in removal proceedings and are often unable to adequately represent the alien's interests. The court also agreed with the plaintiffs that the appointment of "qualified representatives," either pro bono or at the government's expense, for the entirety of the immigration proceedings constituted a reasonable accommodation. In so finding, the court expressly rejected the government's argument that Section 504 is "only intended to level the playing field and not to provide advantages to the disabled" on the grounds that an accommodation which provides a preference can constitute a "reasonable accommodation" for purposes of the Rehabilitation Act.

In a 2010 decision, the Franco-Gonzales court adopted the plaintiffs' proposed definition of a qualified representative as a person (1) obligated to provide zealous representation; (2) subject to sanction by the immigration courts for ineffective assistance of counsel; (3) free of any conflicts of interest; (4) having adequate knowledge and information to provide representation at least as competent as that provided by an alien detained pending removal proceedings with ample time, motivation, and access to legal material; and (5) obligated to maintain the confidentiality of information. However, it did not directly address whether qualified representatives must be attorneys. A subsequent decision, issued in 2011, clarified that qualified representatives can include not only licensed attorneys but also law students or graduates who are directly supervised by retained attorneys and "accredited representatives." Accredited representatives are persons employed by certain non-profit religious, charitable, social service, or similar organizations who have been accredited by the Board of Immigration Appeals (BIA) and are effectively registered to practice before the immigration judges and the BIA.

In 2013, as a result of the Franco-Gonzales litigation, the Departments of Justice and Homeland Security adopted a "nationwide policy" regarding unrepresented immigration detainees with "serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings." Among other things, this policy calls for procedures that would make qualified representatives available to such individuals.