Framing the Right to Counsel in Immigration Proceedings: Law and Society 2014 Recap


 On Friday, May 30, 2014, I chaired a panel called “Framing the Right to Counsel in Immigration Proceedings” at the annual Law and Society meeting in Minneapolis.  Dean Kevin Johnson was gracious enough to participate, along with UCLA’s Ingrid Eagly, Maryland’s Robert Koulish, and NERA Economic Consulting’s Dr. John Montgomery.  Kevin previously blogged about the panel here, and asked me to write a longer post summarizing our excellent discussion.  I’m happy to do so. 


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 Deportation right-to-counsel has become a movement, spanning legislation, the courts, administrative efforts, and grassroots initiatives.  Legislatively, the U.S. Senate passed right-to-counsel provisions for children, the mentally ill, and “particularly vulnerable” with 68 votes in 2013, as part of comprehensive immigration reform legislation.  Three-quarters of polled Americans now support counsel for individuals facing deportation.  In the courts, a California federal judge held in 2013 that mentally disabled immigration detainees have a right to appointed counsel.  The Department of Homeland Security (DHS) and Department of Justice (DOJ) then agreed to implement appointed counsel for those detainees nationwide.  Just last Friday, DOJ also announced it would issue $2 million in grants through AmeriCorps to provide lawyers for immigrant children facing deportation.  And locally, in 2013 New York City provided $500,000 to a pilot representing immigrant detainees, with Los Angeles and other cities seeking to follow their efforts. 


 One might call this groundbreaking progress. But compare this state of affairs to that in other U.S. criminal and civil proceedings. In criminal proceedings, of course, the right to appointed counsel has existed for over 50 years since Gideon v. Wainwright.  In civil proceedings, 47 states provide appointed counsel in proceedings to terminate parental rights.  The federal government and states also typically provide appointed counsel in civil proceedings with liberty at stake, such as sex offender civil commitment or military detention of suspected terrorists.  Thus, as I testified, the U.S. widely provides counsel to those being locked up or losing their children—except in deportation proceedings, where with both at risk.


 Given this, one might also wonder, “Why does immigration appointed counsel lag other criminal and civil contexts”?  Put another way, why does immigration appointed counsel inequality exist?  Our panel addressed these questions. 


 Ingrid Eagly set the stage by summarizing her 2013 Yale Law Journal article, Gideon’s Migration, 122 Yale L.J. 2282 (2013).  Eagly discussed the three interrelated values that appointed counsel promotes—equality, efficiency, and efficacy.  Equality, in the context of the criminal Gideon decision, initially referred to equality between rich and poor in the courts.  Yet equality has taken on different meanings in the immigration context.  It might mean equality for states with immigration representation versus others without; equality for immigration proceedings versus analogous criminal or civil proceedings with similar interests at stake, and perhaps for certain groups (e.g. children, lawful permanent residents, or detainees); or equality based on a notion of a universal right to counsel, derived from human rights values.


 Secondly, the efficient administration of immigration courts also drives immigration right-to-counsel arguments, made by bipartisan or nonpartisan bodies like the Administrative Conference of the United States (ACUS) orVera Institute, which provides know-your-rights presentations to detainees through the Legal Orientation Program(LOP).  Third, Eagly also noted efficacy as a goal – that lawyers provide the capability to produce better outcomes than defendants could achieve themselves, as several criminal studies show. 


 Dr. John Montgomery then gave the first public presentation of his study, “Cost Of Counsel In Immigration: Economic Analysis of Proposal Providing Public Counsel to Indigent Persons Subject to Immigration Removal Proceedings.”  (The New York Times reportedon his study that morning, with the press release here.)  Dr. Montgomery’s cost-benefit study estimated that federal appointed counsel would “pay for itself” under plausible assumptions.  In so doing, Dr. Montgomery fleshed out efficiency rationales for counsel—for example, estimating detention cost savings (building upon LOP cost-benefit studies), and noting reductions of 87,000 hearings and 115,000 court time hours that would help reduce the immigration court backlogConcurrently, Dr. Montgomery’s study fleshed out efficacy rationales.  He noted that lawyers would likely help 17,550 eligible noncitizens win more deportation cases, thus creating further cost savings from reduced foster care and reduced deportations (as well as further economic benefits difficult to quantify, given current data). 


 Kevin Johnson then followed, discussing his 2013 Yale Law Journal article, An Immigration Gideon for Lawful Permanent Residents, 122 Yale L.J. 2394 (2013). In his article, Johnson set out Constitutional arguments for counsel to green card holders in deportation proceedings under Mathews v. Eldridge, 424 U.S. 319 (1976).  Among other arguments, Johnson noted that counsel would reduce errors that historically have a racially disparate impact.  As Johnson said, “Recall that Gideon v. Wainwright was part of the Warren Court’s efforts to remove the taint of race from the U.S. criminal justice system.” Id. at 2411.  Johnson also raised the possibility, though, whether a piecemeal strategy—pushing for appointed counsel one sympathetic subgroup at a time—might be counterproductive to larger efforts to ensure counsel for all.  (Johnson also graciously noted that Montgomery provided a more robust economic justification for counsel than existed at the time of his article.  Id. at 2413.) 


 Robert Koulish then set out structural explanations for continuing immigration appointed counsel inequality.  As Koulish said, “Why don’t we have it?”  Koulish pointed to the history of immigration law as derived from sovereignty presumptions, legally ensconced in plenary power doctrine.  Although as Hiroshi Motomura noted, procedural arguments have made increasing inroads, Koulish argued that conceptions of government power inherent to sovereignty would necessarily lead to the government regarding lawyers as threatening.  Koulish buttressed his point by referring to lawyers’ early 20th century efforts to litigate immigration cases at Ellis Island, which government attorneys conceded individually to prevent precedent from encroaching on broader institutional executive deference. 


 I responded by acknowledging the historical perception of immigration law as a largely rights-free realm.  Explanations for immigration appointed counsel inequality may thus be more structural, beyond any unpopularity of those in proceedings.  (After all, Congress in the last 30 years provided appointed counsel to violent criminal defendants at bail hearings, sex offenders, and Al Qaeda suspects, with little objection).  The impacts in deportation proceedings encompass impacts in other proceedings that involve counsel.  Yet deportation proceedings, unlike other civil and criminal proceedings, are perceived to involve exclusively noncitizens (even though some citizens are inevitably deported as well).


 Still, since Gideon, a counter-narrative may be forming that entrenches appointed counsel regardless of citizenship as part of Americans’ conception of justice.  As Miranda provides, criminal defendants are routinely read the words “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you…” without first being asked for citizenship papers.  Indeed, as Justice Rehnquist noted, the Miranda warnings “have become part of our national culture.”  Dickerson v. United States, 530 U.S. 428 (2000). 


 Moreover, “there is no citizenship test for counsel in America,” as the New York City Bar Association wrote.  Wherever appointed counsel is provided in the United States—in civil, criminal, or military proceedings, by the federal government or states—it is provided to all, regardless of immigration status.  Indeed, even when states recently passed anti-immigrant legislation, no state withdrew appointed counsel from undocumented immigrants in proceedings.  Alabama, for example, sought to attack every aspect of an illegal immigrant’s life” in its HB 56 legislation.  It sought to prevent unauthorized individuals from working, renting apartments, and signing contracts, and their children from attending school.  But Alabama did not take away from the unauthorized appointed counsel in criminal proceedings or civil parental termination proceedings


 That said, Congressional restrictions on Legal Services Corporation funding generally prevent unauthorized immigrants (but not green card holders, or certain vulnerable victims) from receiving civil legal aid.  Going forward, in the legislative arena, immigration appointed counsel advocates may seek to frame a lawyer as protecting rights at stakewhether civil, criminal, or human—rather than a benefit that is provided.  When the interests at stake are perceived to impact rights, not benefits, citizenship distinctions fall away, so it seems. 


 Questions were thoughtful, insightful, and challenging.  Johnson led the discussion by noting that the history of race and class distinctions in providing counsel, along with structural inequality, could not be ignored.  Dr. Montgomery received several questions.  One, in particular, pointed out the high percentage of immigration respondents currently lacking viable claims, and the study’s assumption that lawyers would contribute to efficiency by helping those without relief accept deportation more quickly (as ACUS, Vera Institute, and the New York Immigrant Representation Study previously pointed out).  Montgomery noted that his study considered the current deportation adjudication system as is—with one change, appointed counsel.  The discussion then turned to the extent to which process can make an unfair system substantively “fairer.”  I also pointed out that historically, as I testified, policymakers have considered only the costs of legal assistance—and then naturally cut costs.  Yet Montgomery’s study also quantified benefits, facilitating a more holistic debate.  Indeed, the lack of analogous holistic economic research may contribute to the historical underfunding of criminal public defenders. 

This post originally appeared on ImmigrationProf Blog. © Copyright 2004-2014 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.

About The Author

Mark Noferi

Mark Noferi teaches a Civil Rights and Immigration seminar at Brooklyn Law School, as well as legal writing. Professor Noferi's research interests focus on immigrants' rights, and criminal, constitutional and administrative law. He recently published on the right to counsel for immigration detainees (, and previously on due process limits on conspiracy liability. He also chairs a subcommittee of the New York City Bar studying immigration detention, which is actively advocating Congress for appointed counsel and reduced detention in immigration proceedings.  Their materials are available at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.