The lack of a right to government-funded counsel in the immigration justice system eviscerates due process.

One way in which the government deports immigrants from the United States is by placing them in removal proceedings in immigration courts administered by the U.S. Department of Justice. Removal (also known as deportation) is one of the most severe penalties a person can face under law.^[]The terms removal and deportation are used interchangeably, though there are distinctions under the law.

For those deported, these proceedings carry dire consequences—physical exile from one’s home, separation from one’s family, loss of employment, and potential violence or death on return to the country of origin.

Despite the high stakes, people in immigration proceedings do not have the right to government-funded counsel. They must navigate the notoriously complicated and ever-changing labyrinth of immigration law alone against a trained government attorney, without the help of a lawyer.^[]On the labyrinthine nature of immigration court, see Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003); and Noel Brennan, “A View from the Immigration Bench,” Fordham Law Review 78, no. 2 (2009), 623-31, 624, https://perma.cc/VEU8-GJ3L.

Considering the severe consequences of deportation, the lack of a right to government-funded counsel in removal proceedings violates due process and the basic fairness considered fundamental to the justice system and American society as a whole. As the Fifth Amendment to the U.S. Constitution, which has been held applicable to deportation proceedings, states, “No person shall . . . be deprived of life, liberty, or property, without due process of law.”^[]The U.S. Supreme Court has held that the right to due process applies to deportation proceedings. See Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings”).

The right to appointed counsel, which the U.S. Supreme Court describes as “necessary to insure fundamental human rights of life and liberty,” has thus far only been applied in criminal proceedings.^[]Johnson v. Zerbst, 304 U.S. 458 (1938); and Gideon v. Wainwright, 372 U.S. 335 (1963). Yet the complexities of immigration law and the severe consequences at stake make it unjust and unreasonable to expect individuals to represent themselves competently in immigration court.

Indeed, it is nearly impossible to win relief from deportation without the assistance of counsel—only 5 percent of those who won relief between 2007 and 2012 did so without an attorney.^[]Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review 164, no. 1 (2015), 22-24 & figure 4, https://perma.cc/7J65-CZCM.

Nonetheless, the lack of appointed counsel means that tens of thousands of people each year go unrepresented, including asylum seekers, longtime legal residents, immigrant parents or spouses of U.S. citizens, and even children. In some cases, unrepresented U.S. citizens have been detained and deported despite their citizenship.^[]Deportation Research Clinic, Buffett Institute for Global Studies, Northwestern University, United States Citizens in Deportation Proceedings: Immigration Court ‘Code 54’ Adjournments, January 1, 2011 to June 9, 2017 (Evanston, IL: Deportation Research Clinic, 2017), https://perma.cc/3BKR-9FK6.

The result is an immigration court system that appears more like a mass deportation pipeline than a venue where people can fairly present the individual circumstances of their cases.

Immigrants in detention are the least likely to secure representation and the most vulnerable to deportation.

Compounding the lack of government-appointed counsel for immigrants in removal proceedings, detained immigrants face particularly significant challenges in accessing representation. In recent years, representation rates for those detained have hovered around 30 percent, leaving the remaining 70 percent to fend for themselves without the benefit of counsel.^[]Transactional Records Access Clearinghouse (TRAC), “Who Is Represented in Immigration Court?” figure 1, October 16, 2017, https://perma.cc/HPX7-GPF6.

Detention centers are often located in remote areas of the country, away from where attorneys are likely to be concentrated.^[]Eagly and Shafer, “National Study of Access to Counsel,” 2015, 40-43. Yet even in major cities like New York, rates of representation were abysmal before the introduction in 2013 of an appointed counsel program for indigent immigrants facing deportation.^[]Sixty percent of detained immigrants were unrepresented by the time their cases were completed. See Study Group on Immigrant Representation, Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings (New York: Cardozo School of Law, 2011), 3, https://perma.cc/9DAW-ZDDJ.

The loss of liberty and free movement that characterize detention introduce additional obstacles into the already daunting process of an individual trying to represent themselves effectively. It is extraordinarily difficult to gather evidence in support of one’s legal case from the confines of detention. Without internet access and with telephone access that is both expensive and highly restricted, it can be challenging—often impossible—for detained immigrants to obtain documents from other countries.^[]On the expense of phone access for detained immigrants seeking to mount a defense, see Leticia Miranda, “Dialing with Dollars: How County Jails Profit from Immigrant Detainees,” Nation, May 15, 2014, https://perma.cc/Z948-YGEC These documents may include police reports, hospital records, local news articles, supporting affidavits, and certificates of birth, marriage, or death: the kind of evidence that is critical to securing release from detention on bond while the case is pending or establishing a defense to deportation.

Detained, unrepresented immigrants therefore face potentially insurmountable challenges to effectively presenting their cases.

Due process for immigrants has been under attack for decades—and recent policy changes bring renewed urgency to the crisis.

Two laws enacted in 1996 dramatically expanded the government’s unchecked authority to punish people using immigration detention and deportation: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA).^[]Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208 (September 30, 1996); and Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132 (April 24, 1996).

These laws significantly expanded who could be subject to mandatory detention, eliminated the right of some immigrants to make their case before a judge, and exacerbated the racially disproportionate impacts of detention and deportation.^[]The processes that allow the federal government to deport certain categories of individuals without an opportunity to present their cases in front of an immigration judge are known as expedited removal (permitting summary removal of non-citizens who seek entry at a port of entry or those found within 100 miles of the border within 14 days of their arrival to United States who lack proper entry documents), reinstatement of removal (permitting summary removal of non-citizens who return to the United States unlawfully after having previously been deported), and administrative removal (permitting summary removal of non-lawful permanent residents convicted of an aggravated felony). They were established through IIRAIRA in 1996. On the racially disproportionate impacts of detention and deportation, see Juliana Morgan-Trostle and Kexin Zheng, The State of Black Immigrants—Part II: Black Immigrants in the Mass Criminalization System (New York: Black Alliance for Just Immigration and NYU School of Law Immigrant Rights Clinic, 2016), https://perma.cc/NHM8-CFFZ. The impact of these and related policies have been startling, with more immigrants deported between 2000 and 2015 than were deported in the entire 150 years prior.^[]Office of Immigration Statistics, 2015 Yearbook of Immigration Statistics (Washington, DC: DHS, 2016), 103 & table 39, https://perma.cc/6ZQ9-ATKV.

The situation has only worsened in recent years, as the federal executive branch has instituted policies that broaden who is targeted for enforcement while limiting available defenses. Immigration judges have largely been stripped of their discretion to decide many potential issues that come before them, and, in the face of a constantly burgeoning caseload, have been put under pressure to complete cases faster.^[]See U.S. Department of Justice (DOJ), Office of the Attorney General, Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018); and Laura Meckler, “New Quotas for Immigration Judges as Trump Administration Seeks Faster Deportations,” Wall Street Journal, April 2, 2018, https://perma.cc/VM34-W4S3.

Attempts to radically limit the scope of who is eligible for asylum (a form of immigration relief for individuals fleeing persecution) and other relief have threatened to overturn decades of established precedent.^[]See DOJ, Office of the Attorney General, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); and Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (November 9, 2018) (to be codified at 8 C.F.R. Parts 208, 1003, & 1208), https://perma.cc/7BQL-URS5. Those previously granted the right to remain in the country—including recipients of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS)—have been forced to file litigation in federal courts to protect the sudden loss of their right to remain in the United States.^[]Under DACA, children under the age of 18 who were brought to the United States without authorization prior to 2012 are not targeted for deportation and are eligible to work lawfully. TPS provides temporary legal status to citizens of certain countries affected by armed conflict or natural disasters. For DACA, see Regents of University of California v. United States Department of Homeland Security, 279 F. Supp. 3d 1011 (N.D. Cal. 2018). For TPS, see Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018). Immigrant children have been forcibly torn from their parents and detained.^[]On family separation, see DHS, Office of Inspector General, Special Review—Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy (Washington, DC: DHS, 2018), https://perma.cc/KP59-V64B. Even naturalized U.S. citizens have been targeted for enforcement after decades of lawful residency due to minor inconsistencies on their citizenship applications.^[]Amy Taxin, “US Launches Bid to Find Citizenship Cheaters,” Associated Press, June 11, 2018, https://perma.cc/AK83-PRXT.