A Civil Gideon? The Case for Universal Representation in Immigration Courts

By: Meg Keiser*

In 1932, the Supreme Court began considering the right to counsel as a due process concern in Powell v. Alabama, holding that in capital cases where a defendant is unable to independently secure counsel, the Court must appoint counsel.^[1] From Powell came Johnson v. Zerbst holding that the Constitution’s Sixth Amendment guaranteed the right to counsel for criminal defendants facing federal prosecution.^[2] Continuing the fight for defendants’ right to counsel, advocates scored a major victory in 1963 with the landmark ruling in Gideon v. Wainwright, incorporating the Sixth Amendment right to counsel in criminal proceedings into the Fourteenth Amendment, applying the right to counsel at the state level.^[3]

However, the constitutional right to counsel has only been applied to the criminal context.[4] Immigration proceedings, though often closely linked to the criminal justice system, are civil proceedings.^[5] Much of immigration law is governed by the Immigration and Nationality Act, which provides that “the [noncitizen] shall have the privilege of being represented, at no expense to the Government, by counsel of the [noncitizen’s] choosing who is authorized to practice in such proceedings.”^[6] While noncitizens in immigration proceedings have a right to counsel, the noncitizen is responsible for securing representation, which is often fee-based.^[7] Representation by a lawyer is not economically feasible for most individuals, but a 2016 report revealed that 86 percent of likely voters in the U.S. supported the government appointment of an attorney to noncitizens in removal proceedings who are unable to afford one.^[8] Many immigration advocates push for change in immigration courts, with one of these changes being universal representation.[9]

Though the term is familiar in the criminal justice context, universal representation is relatively new to the immigration court context.^[10] Universal representation “refers to a system in which individuals facing prosecution by government adversaries are entitled to appointed counsel if they cannot afford to retain their own.”^[11] Currently, the system relies on pro bono attorneys, nonprofit legal services providers, and law school clinical programs to serve this population if they desire representation.^[12] This is “woefully insufficient” to meet the growing demand for immigration representation.^[13]

With nonprofits being the main vehicle to fill the gap in representation, decisions on which cases and clients to represent falls back on allocation of limited resources.^[14] Allocating these resources often entails selection of cases based on their merits, involving considerations of organizational capacity, impact on the community, and future funding.^[15] Organizations must filter through cases in one way or another, resulting in reluctancy to take cases that are unlikely to succeed.^[16] This merits-based approach, while practical in a world of limited resources, often leaves the most vulnerable and at-risk noncitizens, including detainees, without representation.^[17] Instead, a merits-blind system would allow all indigent defendants representation, regardless of the apparent strength of their claims.^[18]

The system currently in place systematically disadvantages detained noncitizens.[19] According to a 2016 report, only 37 percent of all noncitizens and 14 percent of detained noncitizens were represented in immigration court.^[20] It is difficult to win a removal case—only 5 percent of winning cases between 2007-2012 did so without representation.^[21] When represented, detained noncitizens are over ten times more likely to win their cases.^[22] Many detained individuals with strong cases cannot adequately or effectively present their cases.^[23] Detention centers are frequently located in remote areas and defendants have limited phone access, which makes it difficult for attorneys to travel to or communicate with their clients.^[24] This often makes it impractical for nonprofits to allocate resources to representing detainees. Detained noncitizens are unable to work and fee-based lawyers are often not an option.^[25] Detained individuals are also more likely to benefit from representation compared to their non-detained counterparts.^[26] Firstly, noncitizens are more likely to apply for relief and bring fewer unmeritorious claims.^[27] Secondly, detained noncitizens with counsel are more likely to be released from custody.^[28] Release from custody means lowering detention operation costs.[29] It costs at least $119 per day for each bed according to ICE estimates, and $159 per day if ICE operational costs are included.^[30] Finally, those released from custody are more likely to show up to future court dates, simultaneously increasing court efficiency.^[31] Representation is critical for noncitizens in removal proceedings, but especially detained noncitizens.[32] It is fundamentally unfair in an adversarial system to have one side well-represented—the U.S. government—and the other with a noncitizen, often with limited English and minimal understanding of the legal system.^[33] Universal representation offers a solution to help balance the playing field.

Immigration proceedings are administrative, but this label trivializes the true nature of the proceedings. Immigration proceedings have been described as “death penalty cases adjudicated in traffic court settings.”^[34] Given the high stakes in immigration court—deportation and detention—the fundamental principles of due process must be upheld.^[35] For there to be true due process, universal representation must be part of the equation.[36] It is widely acknowledged that the presence of lawyers in adversarial immigration proceedings increases the integrity of the judicial system.^[37] Ensuring due process through the use of lawyers raises the quality of justice, guards against government overreach, and increases public trust in courts.^[38] The overwhelmed immigration court system often prefers speedy resolution over just outcomes, and is a hotbed for factual and legal error in addition to due process violations.^[39] Representation is not only beneficial for the defendant.[40] One study showed that 92 percent of immigration judges agreed that when a noncitizen is represented by counsel, the judge is able to adjudicate the case more efficiently.^[41] Representation of noncitizens in immigration court provides the due process protections they are entitled to, holds the government’s counsel accountable to burdens of proof and abuses of power, and improves the integrity and efficiency of the judicial process.^[42]

Universal representation is not currently a nationwide reality but has proven successful in various programs around the country.^[43] The universal right to counsel could help address many of the inequalities, challenges, and inefficiencies in immigration court.[44] In March 2023, the American Immigration Lawyers Association advocated for Congress to fund a Department of Justice pilot program with $400 million to assist noncitizens facing removal.^[45] Efforts like this are a step in the right direction, but for a truly just process honoring due process rights, universal representation must be implemented on a national level for noncitizens facing removal.[46] Representation in immigration court is a due process concern, and the principles of Gideon must be extended to the removal proceedings context.

^[1] Powell v. Alabama, 287 U.S. 45 (1932).

^[2] Johnson v. Zerbst, 304 U.S. 458 (1938).

^[3] Gideon v. Wainwright, 372 U.S. 335 (1963).

[4] See generally Id.

^[5] Karen Berberich and Nina Siulc, Why Does Representation Matter? The Impact of Legal Representation in Immigration Court, Vera Inst. Of Just. (Nov. 2018), https://www.vera.org/downloads/publications/why-does-representation-matter.pdf.

^[6] 8 U.S.C. § 1229a(b)(4)(A).

^[7] Am. C.L. Union, The Right to Counsel (Oct. 26, 2020), https://www.aclu.org/sites/default/files/field_document/right_to_counsel_final.pdf.

^[8] Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, Am. Immigr. Council, (Sept. 28, 2016) https://www.americanimmigrationcouncil.org/research/access-counselimmigration-court.

[9] Berberich and Siulic, supra note 4.

^[10] Lindsay Nash, Universal Representation, 87 Fordham L. Rev. 503, 503 (2018).

^[11] Id.

^[12] Id. at 506-07.

^[13] Nat’l Immigr. L. Ctr., The Fight for Right to Counsel in Detention and Beyond (2016), https://www.nilc.org/wp-content/uploads/2016/04/Right-to-Counsel-Blazing-a-Trail-2016-03.pdf.

^[14] Nash, supra note 8 at 506-07.

^[15] Id. at 507.

^[16] Id. at 508-10.

^[17] See generally Nash, supra note 8.

^[18] Id.

[19] See generally Eagly and Shafer, supra note 7.

^[20] Id.

^[21] Berberich and Siulc, supra note 4.

^[22] Id.

^[23] Nat’l Immigr. L. Ctr., supra note 11.

^[24] Eagly and Shafer, supra note 7.

^[25] Id.

^[26] Nat’l Immigr. L. Ctr., supra note 11.

^[27] Id.

^[28] Id.

[29] Id.

^[30] Id.

^[31] Id.

[32] Id.

^[33] Id.

^[34] Am. C.L. Union, supra note 6.

^[35] Nat’l Immigr. L. Ctr., supra note 11.

[36] See Lindsay Nash, Universal Representation: Systemic Benefits and the Path Ahead, 7 J. on Migration and Hum. Sec. 103, 105 (2019).

^[37] Id.

^[38] Id.

^[39] Id.

[40] Id.

^[41] Nat’l Immigr. L. Ctr., supra note 11.

^[42] Nash, supra note 31 at 106.

^[43] See Nash, supra note 8 at 504.

[44] See Berberich and Siulic, supra note 4.

^[45] Hitha Bollu, Update on Right to Counsel in Immigration, Pro Bono Inst., (June 21, 2023) https://www.probonoinst.org/2023/06/21/update-on-right-to-counsel-in-immigration/.

[46] See Berberich and Siulic, supra note 4.