Due Process for Immigrants

Due Process for Immigrants

by Donald Kerwin, Executive Director of the Catholic Legal Immigration Network, Inc.

Over the course of more than 120 years, two overarching themes have emerged in U.S. jurisprudence regarding the interplay between immigration control and the rights of non-citizens. On the one hand, the political branches of the federal government enjoy “plenary” authority to determine who can enter, who must leave, and who can stay. On the other, constitutional protections extend to “people” or “persons,” including non-citizens.

Not every restriction on immigrants implicates the government’s power to regulate immigration, and our immigration laws must be enforced in ways that respect constitutional norms. As the Supreme Court said in 2001, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.”

Most deportation proceedings – now called “removal” – suffer from a fundamental deficiency. Immigrants cannot effectively represent themselves in these complex and consequential proceedings, yet, even in the most meritorious cases, most have no choice but to proceed pro se because of the absence of appointed counsel.

Under federal law, persons facing removal enjoy a right to representation, but “at no expense to the government.” Notwithstanding this statutory restriction, some federal courts have recognized that due process might necessitate government-funded counsel in the right set of circumstances. More commonly, however, federal courts appoint pro bono counsel in complex cases, mooting right-to-counsel claims.

According to the Department of Justice, more than one-half of the persons in removal proceedings lack legal representation. As confirmed by a federally-funded program that provides legal orientation to detained immigrants, most persons without counsel have no viable claim for relief and, when provided an independent orientation, concede to removal, saving the government significant expense. However, others have compelling claims based on U.S. citizenship, fear of persecution, likelihood of torture, long-term lawful permanent residency and family ties in the United States. As Justice Brandeis wrote nearly 90 years ago, deportation can result “in loss of both property and life; or of all that makes life worth living.”

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