LegiStorm

Summary:

The scope of aliens' right to counsel in removal proceedings 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. Right to Counsel at the Alien's Expense. The Fifth Amendment to the U.S. Constitution has generally been construed to mean that aliens have a right to counsel at their own expense in formal removal proceedings. 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. While then-Attorney General Mukasey's 2009 decision in Matter of Compean expressed doubt about the Fifth Amendment basis for aliens' right to counsel at their own expense, this decision was subsequently vacated later in 2009 by then-Attorney General Holder. Various federal statutes and regulations also provide aliens (other than those in expedited removal proceedings under Section 235 of the INA) with a right to counsel at their own expense. Some of these provisions refer to such counsel as a "privilege." However, the provisions have generally been construed as conferring a legally enforceable right. Right to Counsel at the Government's Expense. Aliens, as a group, generally do not have a right to counsel at the government's expense in administrative removal proceedings under either the Sixth Amendment or the INA. The Sixth Amendment's "right to ... have the Assistance of Counsel" at government expense, in the case of indigent persons, applies to criminal proceedings. Removal proceedings, in contrast, are civil in nature (although aliens subject to judicial orders of removal could be seen to have a Sixth Amendment right to counsel in the criminal proceedings that result in such orders). Similarly, the INA and its implementing regulations do not purport to provide a right to appointed counsel for any aliens except those removed by the Alien Terrorist Removal Court, which has not been used to date. Individual aliens could, however, potentially be found to have a right to counsel at the government's expense on other grounds, depending upon the facts and circumstances of the case. Several federal courts of appeals have suggested that the Fifth Amendment's guarantee of due process could require the appointment of counsel on a case-by-case basis for individual aliens who are incapable of representing themselves due to "age, ignorance, or mental capacity," although it is unclear whether any alien has been provided with appointed counsel on this basis to date. In addition, Section 504 of the Rehabilitation Act has been construed to require the appointment of "qualified representatives" for aliens who are "mentally incompetent" to represent themselves in removal proceedings. These representatives may be pro bono, or appointed at government expense, and they can include licensed attorneys as well as persons who are not attorneys.