The Right to Counsel in Removal Proceedings

There have been several rulings recently relating to rights of mentally ill immigrants and the protections that should be afforded to them. The Board of Immigration Appeals has recently set up safeguards that must be used in cases where Immigration Judges ascertain that an immigrant might be mentally incompetent. The decision obligates Immigration Judges to make such determinations and to take the “appropriate safeguards” to ensure that removal proceedings pass constitutional muster. These safeguards include administrative closure and allowing an unrepresented immigrant’s relative to appear on the alien’s behalf. I personally have problems with the decision, because it falls short of what is really needed.

What we do need is the right to counsel to every person in removal proceedings. I do believe that aliens need to be represented by counsel, whether they are mentally incapacitated or not. I believe that such representation will cure any constitutional defects that might arise in any removal proceeding. This right to representation does not exist in immigration proceedings since the United States Supreme Court has ruled that removal proceedings are civil in nature.

We have taken steps to institute such right in proceedings where the Respondent is mentally incapacitated. Recently, the Middle District of California certified a class-action suit where the main issue was whether mentally incompetent immigrants have the right to appointed counsel. The main reason I believe that such a class is too limited is related to a recent experience I had.

I recently went to Miami to represent a detained client (and I do believe that he constitutional rights have been violated in the criminal proceedings). I was shocked by the joy the Immigration Judge had because I was present. The judge’s surprise was related to the fact that most of the immigrants appearing before him pro se just do and say anything to get out of removal proceedings, including taking a removal order. He highlighted the fact that not many attorneys appear before him to represent the immigrants appearing before him. I do think that if these immigrants were represented, and most of them were Cubans, they would have been afforded some relief from deportation. The judge told me that the second the United States rectifies its relationships with Cuba, these people will, in fact, be deported. I think the reason behind the immigrants’ decisions were because of bad legal advice they received from someone close to them (maybe their own relatives, who are being recruited to represent mentally disabled immigrants).

I ask you the reader, what is the price of defending someone’s constitutional rights? Is that price too high? Is the price worth the sacrifice when it means protecting someone’s American dream™?

I leave you with these thoughts.