* Senior Articles Editor, Boston College Third World Law Journal (1999–2000).
1 See infra Part II.
2 See Immigration and Nationality Act (INA) § 212(a)(9), 8 U.S.C. 1182 (1998). This Note will use the INA citations since the statutes referred to herein are all found within the INA. See also infra note 138 and accompanying text.
3 See INA §§ 239, 240(a). A notice to appear initiates the deportation proceeding against a non-citizen. See id. § 239(a). The notice lists the charges against the non-citizen and informs him of the time and place of the proceeding. See id.
4 See id. § 240.
5 See infra Part III.
6 See Robert N. Black, Due Process and Deportation—Is There a Right to Assigned Counsel? 8 U.C. Davis L. Rev. 289, 296–308. Black’s conception of the right to appointed counsel is not absolute. See id. at 305–08. Certain classes of non-citizens, such as non-immigrants not asserting citizenship or asylum seekers, would not be afforded this right. See id. at 305–06.
7 See id. at 299–300.
8 Id. at 308; see also infra Part I.
9 See Black, supra note 6, at 299–304.
10 See id. at 304.
11 Id. at 304, 308.
12 See generally Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975); infra notes 79–83 and accompanying text.
13 See Aguilera-Enriquez, 516 F.2d at 568–69.
14 See id.
15 See id. at 569.
16 See infra note 84.
17 See infra note 85.
18 See, e.g., David A. Robertson, An Opportunity to Be Heard: The Right to Counsel in a Deportation Hearing, 63 Wash L. Rev. 1019, 1040 (1988); William L. Dick, Jr., Note, The Right to Appointed Counsel for Indigent Civil Litigants: The Demands of Due Process, 30 Wm. & Mary L. Rev. 627, 628 (1989); Elizabeth Glazer, Note, The Right to Appointed Counsel in Asylum Proceedings, 85 Colum. L. Rev. 1157, 1157–58 (1985). Like Black, these authors set limits as to which classes of non-citizens have interests great enough to warrant this protection. See Black, supra note 6, at 305–08; Robertson, supra, at 1050; Dick, supra, at 628; Glazer, supra, at 1157–58.
19 See Black, supra note 6, at 305–08; Robertson, supra note 18, at 1050; Dick, supra note 18, at 628; Glazer, supra note 18, at 1157–58; see also 424 U.S. 319, 335 (1976). For a discussion of the Court’s holding in Mathews, see infra notes 147–51 and accompanying text.
20 Illegal Immigrant Reform and Immigration Responsibility Act, Pub L. No. 104–208, 110 Stat. 3009–546 (1996)(codified in scattered sections of 8 U.S.C) [hereinafter IIRIRA]. Instead of referring to the United States Code citation, throughout this Note, I will cite to the corresponding section of the INA.
21 See infra Part II.B.
22 See INA § 321(c); infra notes 135–37 and accompanying text.
23 In general, non-citizens (any person who is not a citizen or national of the United States) can be divided into two categories: immigrants and non-immigrants. See INA § 101(a)(15). Immigrants are defined negatively in the INA: all non-citizens who do not fit into one of the specified non-immigrant categories are immigrants. See id. Non-immigrants are usually allowed to enter the United States for only a limited amount of time and for a specific reason. See, e.g., id. § 101(a)(15)(B), (K). For example, non-immigrants can come to the United States to attend school, to conduct business, or to visit relatives. See id. § 101(a)(15)(B), (F).
Immigrants, however, generally intend to remain in the United States. See id. § 201(a). Upon admission, most immigrants attain the status of legal permanent resident (LPR), are able to work, and are eligible for some government benefits. See Stephen H. Legomsky, Immigration and Refugee Law and Policy 99 (2d ed. 1997). In 1998, 660, 477 immigrants were admitted to the United States. See Office of Policy and Planning, Statistics Branch, Immigration and Naturalization Service, U.S. Dept. of Justice, No. 2, Legal Immigration, Fiscal Year 1998, at 7 (May 1999) [hereinafter Legal Immigration]. Of this number, 72% were family-sponsored immigrants (family preference immigrants and immediate relative immigrants). See id. They were admitted to the United States because they have relatives who are citizens or LPRs. See INA §§ 203(a), 204(a), (c), (f), (g), (h). About 8% of the immigrants were refugees, almost 12% came because of an employment offer, and about 7% came as part of a diversity program. See Legal Immigration, supra, at 7.
24 The 1996 changes to the INA abolished the term “deportation proceedings.” See Legomsky, supra note 23, at 534. The term “removal proceedings” was added to encompass both deportation and exclusion (now called “inadmissibility”). See id. Removal proceedings adjudicate non-citizens whom the Service wants to remove either because they are deportable or because they are inadmissible. See id. However, for purposes of this article, I will use the terms “deportation” and “deportation proceedings” in order to distinguish between the removal of non-citizens because they are deportable and the removal of non-citizens because they are inadmissible.
25 See 424 U.S. 319, 335 (1976).
26 See infra note 90.
27 See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Bridges v. Wixon, 326 U.S. 135, 154 (1945).
28 See U.S. Const. amend. VI. See also, e.g., Galvan v. Press 347 U.S. 522, 531 (1954)(prohibition against ex-post facto laws not applicable). However, even in the case of retroactive legislation, which has long been accepted in the civil context, due process arguments have been made against their applicability in deportation proceedings. See Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 73 N.Y.U. L. Rev. 97, 97 (1998). Although Morawetz acknowledges that the legislature can proscribe retroactive immigration laws, she suggests that recent retroactive legislation, particularly with regard to aggravated felons, is not justifiable and violates due process. See id. at 97–98, 100.
29 See Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903).
30 Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893); see Chae Chan Ping v. United States, 130 U.S. 581, 603–04 (finding that political branch has exclusive control of sovereign power to regulate immigration).
31 See, e.g., Harisiades v. Shaughnessy, 342 US 580, 588–90 (1952).
However, even with regard to issues that are clearly substantive in nature, there are some narrow limitations to Congress’ power. For example, in Francis v. INS, the court entertained an equal protection challenge to a provision that offered relief to certain classes of non-citizens while denying it to others. See 532 F.2d 268, 272 (2d Cir. 1976). Using a minimum scrutiny standard, the court found that the standards for eligibility were not fair and not substantially related to the object of the legislation. See id. at 272–73.
Furthermore, Hiroshi Motomura argues that the development of due process protections available to immigrants has effectively brought substantive due process into immigration law as well. See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625, 1656–1704 (1992).
32 See Yamataya, 189 U.S. at 100.
33 Id.
34 See id. 100–02.
35 See id. at 101–02.
36 See id.
37 There were several cases that did in fact look at the entire procedure to determine if the non-citizen had been afforded due process. See, e.g., Whitfield v. Hanges, 222 F. 745, 749 (8th Cir. 1915); Ex Parte Chin Loy You, 223 F. 833, 837–39 (D. Mass. 1915).
38 See Motomura, supra note 31, at 1638–44; David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. Pitt. L. Rev. 165, 174–75 (1983).
39 Charles Gordon, Right to Counsel in Immigration Proceedings, 45 Minn. L. Rev. 875, 879 (1961).
40 See Immigration and Naturalization Act, Pub. L. No. 82–414, 66 Stat. 163, § 242 (1952).
41 See id. §§ 242, 292. However, there were increased procedural protections after 1950 when the Supreme Court decided Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), which held that the Administrative Procedures Act (APA) was applicable to deportation proceedings. See Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 Interpreter Releases 453, 456, May 2, 1998. Congress subsequently exempted the Service from having to conform with the APA. See id. at 457.
42 Currently, this provision states: “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings[.]” INA § 240(b)(4)(A).
43 See 372 U.S. 335, 342, 345 (1963). The Court agreed with the defendant that the appointment of counsel is a fundamental right essential to a fair trial. See id. at 344–45 (overruling Betts v. Brady, 316 US 455 (1942)). Therefore, the Sixth Amendment guarantee of counsel for indigent defendants was extended to the states via the Fourteenth Amendment. See id. at 342.
44 Gideon, 372 U.S. at 344–45 (quoting Powell v. Alabama, 287 U.S. 45, 68–69 (1932)).
45 See William Haney, Deportation and the Right to Counsel, 11 Harv. Int’l L.J. 177, 184–85 (1970).
46 See In re Gault, 387 U.S. 1, 41–42 (1967); see also Robert S. Catz & Nancy Lee Frank, The Right to Appointed Counsel in Quasi-Criminal Cases: Towards an Effective Assistance of Counsel Standard, 19 Harv. C.R.-C.L. L. Rev. 397, 410 (1984). Interestingly, around this same time, the Supreme Court was also expanding the protections afforded criminal defendants beyond the right to counsel. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467–68 (1966).
47 In re Gault, 387 U.S. at 41. Like deportation proceedings, delinquency proceedings are civil, not criminal, hearings. See supra note 28; Catz & Frank, supra note 46, at 399–400. Some commentators refer to these proceedings as “quasi-criminal.” See id.
48 See In re Gault, at 38–42; Catz & Frank, supra note 46, at 410.
49 See Catz & Frank, supra note 46, at 410; Haney, supra note 45, at 184–85.
50 See Catz & Frank, supra note 46, at 410; Haney, supra note 45, at 184–85.
A year later, in Heryford v. Parker, the Tenth Circuit extended In re Gault to civil commitments. See 396 F.2d 393, 396 (10th Cir. 1968). Like in In re Gault, the court focused on the fact that physical liberty was at stake. See id.; In re Gault, 387 U.S. at 41. That the deprivation of freedom was necessary to administer treatment rather than punish the individual did not matter. See Heryford, 396 F.2d at 396; Catz & Frank, supra note 46, at 411.
51 See Catz & Frank, supra note 46, at 415.
52 452 U.S. 18 (1981). The right to appointed counsel diminished as the liberty interest diminished. See id. at 26; see also Catz & Frank, supra note 46, at 417.
53 See, e.g., De Bernardo v. Rogers, 254 F.2d 81, 82 (D.C. Cir. 1958); In re Raimondi, 126 F. Supp. 390, 391, 395 (N.D. Cal. 1954).
54 See, e.g., De Bernardo, 254 F.2d at 82; Raimondi, 126 F. Supp. at 395. In Henriques v. INS, the court rejected the petitioner’s claim that he was entitled to appointed counsel, reasoning that counsel would not have been able to obtain a different outcome for the petitioner in the deportation proceeding. 465 F.2d 119, 120 (2d Cir. 1972). However, the court declined to address the issue of whether counsel would be required in certain cases calling that a “grave” question that would best be left for another time. See id. at 121.
55 See Haney, supra note 45, at 184.
56 See id. at 185.
57 See id. (citing Harisiades v. Shaughnessy, 342 U.S. 580 (1952) and Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953)).
58 411 U.S. 778 (1973).
59 408 U.S. 471 (1972).
60 See Aguilera-Enriquez v. INS, 516 F.2d 565, 568 & n.3 (6th Cir. 1965).
61 See Gagnon v. Scarpelli, 411 U.S. 778, 780 (1973).
62 See id. at 782. Gagnon had pleaded guilty to armed robbery and was placed on probation for seven years. See id. at 779.
63 See id. at 782–83, 790; Morrissey v. Brewer, 408 U.S. 471, 480–82 (1972).
64 See Gagnon, 411 U.S. at 787–90.
65 See generally, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963).
66 See In re Gault, 387 U.S. 1, 41 (1967).
67 See Gagnon, 411 U.S. at 788–89. In doing so, the Court adopted an approach similar to that of the right to counsel in felony prosecutions in Betts v. Brady, 316 U.S. 455 (1942). See id. The court acknowledged the fact that this approach was rejected in Gideon, but maintained that the differences between criminal trials and probation revocation hearings was substantial enough that the case-by-case approach is not necessarily inadequate. See id.
68 See id. at 789.
69 See id. at 787–88.
70 See id. at 789
71 See id.
72 See Gagnon, 411 U.S. at 787–89.
73 See id. at 787–88.
74 See id.; see also Black, supra note 6, at 295.
75 See generally Gagnon, 411 U.S. 778.
76 See, e.g., Williams v. Commonwealth, 216 N.E.2d 779, 782–83 (1966). In addition to Massachusetts, states that recognize the right to the assistance of counsel at a probation revocation hearing include: Arizona, California, Florida, Idaho, Illinois, Indiana, Maryland, Michigan, Missouri, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, and Texas. See 44 A.L.R. 3d 306, § 4(a) (Supp. 1998).
77 See Williams, 216 N.E.2d at 782–83; see also Commonwealth v. Faulkner, 638 N.E.2d. 1, 5 (1994)(reaffirming the holding in Williams).
78 Williams, 216 N.E.2d at 782–83.
79 Aguilera-Enriquez v. INS, 516 F.2d 565, 568 (6th Cir. 1975) (quoting Gagnon, 411 U.S. at 790).
80 See id. at 569.
81 See id.
82 See id. It is important to note the procedural history of this case. The petitioner had requested counsel at his administrative hearing before an Immigration Judge. See id. at 567. The IJ refused his request, and the petitioner was ordered deported. See id. The petitioner appealed the IJ’s decision to the Board of Immigration Appeals. See id. at 568. The Board dismissed his appeal and the petitioner then sought review in the federal court. See id. The only issue before the Sixth Circuit was whether the petitioner had a constitutionally protected right to appointed counsel. See id.
83 See id. at 569.
84 See, e.g., Cyrulik v. INS, NO. 92–70183, 1993 WL 98817, at *3 (9th Cir. Apr. 2, 1993) (unpublished opinion) (“Cyrulik has failed to show how counsel’s assistance in eliciting Cyrulik’s full testimony or cross-examining certain documents would have altered the outcome of the hearing.”); Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990)(“[P]etitioner’s complaint concerning the lack of appointed counsel does not provide a valid ground for challenging the order of deportation because he has not shown prejudice which would cast doubt on the fundamental fairness of the proceeding.”).
85 See Cyrulik, 1993 WL 98817, at *3; Michelson, 897 F.2d at 468. But see Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) (finding “serious doubts” as to voluntariness of defendant’s waiver of voluntary departure and holding that it was “convinced that his asylum case [would] be more advantageously presented by retained counsel”).
86 See 516 F.2d at 568.
87 See Mathews v. Eldridge, 424 U.S. 313, 335 (1976).
88 Id.
89 See id.
90 See, e.g., Gastelum-Quinones v. Kennedy 374 U.S. 469, 479 (1963)(“deportation is a drastic sanction, one which can destroy lives and disrupt families”); Tan v. Phelan, 333 U.S. 6, 10 (1948) (“deportation is a drastic measure and at times the equivalent of banishment of [sic] exile”); Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“Though deportation is not technically a criminal proceeding it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted.”); Morawetz, supra note 28, at 102. Morawetz goes so far as calling on the courts to “wipe the slate clean and admit to the long evident reality that deportation is punishment.” See id.
91 See Black, supra note 6, at 300–01; Glazer, supra note 18, at 1179–80.
92 In 1998, 129,291 immigrants—about 20% of the total admitted to the country that year—were under 15 years old. See Legal Immigration, supra note 23, at 10.
93 More than two-thirds of all immigrants admitted to the United States in 1998 were family-sponsored. See Legal Immigration, supra note 23, at 7. Furthermore, any child born in the United States is a U.S. citizen regardless of his parent’s citizenship. See INA § 301(a).
94 See INA § 101(a)(42). Refugees come to the United States because of persecution in their native country. See id.; see also infra note 96.
95 The term “refugee” incorporates two groups: refugees, those who make claims from outside of the United States, and asylees, those who make claims once in the United States. See INA §§ 101(a)(42), 207(c), and 208(b)(1).
96 See Glazer, supra note 18, at 1179–80. Refugees are admitted to the United States because they either have been persecuted or have a well-founded fear of being persecuted on one of five grounds specified. See INA § 101(a)(42). To qualify as a refugee, the non-citizen must show that the persecution or well-founded fear of persecution was on account of his race, religion, nationality, membership in a particular social group, or political opinion. See id. There are several statutory bars to asylum including participation in persecution, the commission of a serious non-political crime outside of the United States, and the conviction for a serious crime inside the United States. See INA § 208(a)–(b).
97 See supra note 96.
98 See supra note 23. Although immigrants, unlike non-immigrants, may remain in the United States permanently, they may be deported if they fall within the grounds for deportability. See INA § 237(a). For immigrants, the greatest concern is that they will be found deportable on criminal- or security-related grounds which include: the conviction of one crime of moral turpitude committed within five years after the date of admission and for which a sentence of one year or longer may be imposed; the conviction of two crimes of moral turpitude; the conviction of an aggravated felony; the conviction of a crime related to high-speed flight from an immigration checkpoint; the conviction under a law relating to a controlled substance; the conviction of firearm offense; the conviction of a crime of domestic violence; stalking; or child abuse, neglect, or abandonment; and the violation of a protection order. See INA § 237(a)(2)(scattered sections).
In addition, an immigrant is deportable if he was a drug abuser or addict, committed document fraud or marriage fraud, voted unlawfully, became a public charge, failed to properly register under non-citizen registration laws, smuggled a non-citizen into the United States, or was inadmissible when he entered the country. See id. § 237(a)(1), (2), (3), (5). An immigrant who leaves the United States might also be subject to the grounds of inadmissibility. See INA §§ 101(a)(13), 212(a).
99 Martin, supra note 38, at 210.
100 See id.
101 See Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien Defendant, 50 Ark. L. Rev. 269, 281–82 (1997).
After the Immigration Judge has determined that the alien is deportable, he will consider the various forms of relief for which the non-citizen is eligible. See id. at 284–85. These forms of relief-–which are affirmative defenses, as the non-citizen has the burden of proving eligibility–-are discretionary. See id.
102 See Robertson, supra note 18, at 1035.
103 See Morawetz, supra note 28, at 110.
Prof. Morawetz points out that with regard to the § 212(c) waiver for criminal activity:
[t]he award of the a waiver depended not only on the nature of the criminal conduct, but also on the immigrant’s life after committing the crime. . . . . This waiver process protected the interests of the immigrant who may have built a life of work, family and community based on the understanding that his or her past conviction would not lead to deportation. It also protected the interests of all of those whose lives were intertwined with that of the immigrant, including family members, employers and the employees of immigrants who operated businesses.
Id. at 110–11. Although the immigrant’s stake in remaining in the United States is taken into consideration, it is not dispositive. See id. The Immigration Judge also weighs the gravity of the crime and the non-citizen’s rehabilitative efforts. See id.
104 See INA § 240A(a). The seven years only begin to accrue after the non-citizen has been admitted. See id. Admitted means that he must have entered after inspection and authorization by an immigration officer. See id. § 101(a)(13). In addition, the immigrant must not have been convicted of an aggravated felony to be statutorily eligible. See id. § 240A(a).
105 See INA § 240A(b)(1)(D)
106 See id. The applicant for this relief must also show that he was physically present for 10 years, has good moral character, and was not convicted on various criminal grounds. See id. Cancellation of removal is available to non-immigrants as well as permanent residents. See id. In addition, there are special rules, which are more lenient, for battered spouses and children. See id. § 240A(b)(2)
107 See, e.g., In re Pilch, 1996 BIA LEXIS 37, *7–13 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). Although both of these cases dealt with earlier versions of this form of relief where the standard “exceptional and extremely unusual hardship” was lower, they do offer some guidance as to how this standard is interpreted. See id.
108 See supra note 94–96. A form of relief similar to asylum is withholding of removal (also known as nonreturn or nonrefoulement). See 241(b)(3); see also Sarah Ignatius, Asylum Law and Procedure, in Understanding the New Immigration Law: How the Law Affects Immigrants and Asylum Seekers 147, 148–49 (Iris D. Gomez et al. eds., 1997). Withholding of removal prevents a non-citizen from being deported to a country where he fears that his life or freedom would be threatened. See INA § 241(b)(3)(A); Ignatius, supra, at 148. Like asylum, the fear must be on account of one of the five specified grounds. See id. Although the standard of proof is higher than for asylum, if the non-citizen is statutorily eligible, withholding, unlike asylum, is mandatory. See Ignatius, supra, at 149.
109 See Deborah E. Anker, The Law of Asylum in the United States: A Guide to Administrative Practice and Case Law, 53–54 (2d ed. 1991).
110 See supra notes 95–97. In addition, the IJ may grant other forms of relief such as voluntary departure which allows an immigrant to leave the United States voluntarily in lieu of an order of deportation. See INA § 240B.
111 See Robertson, supra note 18, at 1035–36; Black, supra note 6, at 307.
112 See Robertson, supra note 18, at 1035–36; see also Black, supra note 6, at 307. Black, in his argument for appointed counsel, argues that “the deportation respondent who presents a colorable defense to the charge of deportability would be provided with counsel. . . .” Black, supra note 6, at 307. He goes on to argue that, similarly, “the respondent would be entitled to the assistance of counsel if he could assert a colorable claim to the various forms of discretionary relief provided.” Id.
113 See Aguilera-Enriquez v. INS, 516 F.2d 565, 573 (6th Cir. 1975) (DeMascio, J., dissenting). In the dissent, Judge DeMascio criticizes the case-by-case approach for determining whether appointed counsel is necessary because it requires the court to speculate as to what arguments counsel would have made before the Immigration Judge. See id.
114 See id.; see also infra notes 250–51 and accompanying text.
115 See generally infra notes 120–146 and accompanying text.
116 See IIRIRA, Pub. L. No. 104–208, 110 Stat. 3009–546, Title III, Subtitle B (Criminal Alien Provisions) (1996).
117 For example, non-immigrant visas generally allow the non-citizen to remain in the United States for a specified amount of time. See INA § 101(a)(15). A non-immigrant will be deportable if he overstays his visa. See id. § 237(a)(1)(C)(i).
118 See generally id. § 237(a).
119 See id. § 240A(a).
120 See id.
121 See Morawetz, supra note 28, at 110.
122 See INA § 240A(a). This bar for all aggravated felons was first implemented by the Antiterrorism and Effective Death Penalty Act of 1996. See Pub. L. No. 104–132, 110 Stat. 1214 (1996).
123 See supra note 122.
124 To be deportable under INA § 237(a)(2)(A)(3) the non-citizen must have been convicted of an aggravated felony. As discussed infra note 135, a conviction does not require that the felon actually be incarcerated. See INA § 101(a)(48). Therefore, a felon with a suspended sentence may satisfy the definition of aggravated felony. See id.
125 See Robert James McWhirter, Hell Just Got Hotter: The Rings of Immigration Hell and the Immigration Consequences to Aliens Convicted of Crimes Revisited, 11 Geo. Immigr. L.J. 507, 518 (1997). The term “aggravated felony” was first adopted in 1988 and encompassed particularly serious crimes such as murder and drug trafficking. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100–690, §§ 7341, 7344, 102 Stat. 4181, 4469–71 (1988); see also McWhirter, supra, at 518. However, since then almost every immigration and crime act has expanded the list of crimes that are aggravated felonies. See McWhirter, supra, at 518.
126 See McWhirter, supra note 125, at 518.
127 See INA § 101(a)(43).
128 See Daniel Kanstroom, Immigration Consequences of Criminal Procedures, in Massachusetts Criminal Practice 485, 507 (Eric D. Blumenson et al. eds., 1998).
129 See INA § 101(a)(43)(F).
130 See Kanstroom, supra note 128, at 505 n.82. The sentence requirement must also be met. See INA § 101(a)(43)(F).
131 See Kanstroom, supra note 128, at 505.
132 See id. at 506.
133 See INA § 101(a)(43).
134 See id.
135 See id. It is important to note that a conviction includes a judgment of guilt as well as a situation in which:
(1) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted to sufficient facts to warrant a finding of guilt, and
(2) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
INA § 101(a)(48)(A).
Consequently, plea bargains, which may be designed to avoid deportation, can be “convictions” under the INA. See id.
136 See Morawetz, supra note 28, at 110–11.
137 See INA § 212(a)(9).
138 See Morawetz, supra note 28, at 113.
139 See id.
140 See supra note 121 and accompanying text.
141 See supra note 110.
142 See INA § 212(a)(9). Although non-citizens may be barred from re-entering the United States for up to 20 years, previously removed non-citizens who have not committed aggravated felonies may be admissible. See id.
143 See id. § 101(a)(43)(G).
144 See id.
145 See id. § 212(a)(9).
146 See supra notes 120–46 and accompanying text.
147 See Mathews v. Eldridge, 424 U.S. 313, 335 (1976).
148 See id.
149 See id.
150 See id.
151 See id.
152 See Philip P. Anderson, In Defense of Detainees, A.B.A. J., Mar. 1999, at 6; Gordon, supra note 39, at 878–79; see also Margaret H. Taylor, Promoting Legal Representation for Detained Aliens: Litigation and Administrative Reform, 29 Conn. L. Rev. 1647, 1665–66 (1997); Catherine J. Ross, Appointing Counsel in Civil Litigation, 64 Fordham L. Rev. 1571, 1572–73 (1996).
153 See Anderson, supra note 152.
154 Id.
155 Id.
156 Gordon, supra note 39, at 879.
157 Id. at 878. The study cited by Gordon was 5 Wickersham Commission Report 85 (1931).
158 See Anderson, supra note 153; Gordon, supra note 39, at 879.
159 Margaret Taylor points out that the higher approval rate for asylum seekers with counsel may be attributed in part to factors other than representation. See Taylor, supra note 152, at 1665 n.62. For example, asylum seekers who believe that they have a strong claim may be more likely to seek private counsel. See id. Also, pro bono programs often screen potential clients and offer representation only to those with the strongest claims. See id.
160 See Gordon, supra note 39, at 878.
161 Even before exclusion and deportation proceedings were integrated into removal proceedings, there were substantive similarities between the two processes. Some waivers were available to non-citizens subject to both grounds of deportation and exclusion. Also, many of the grounds of exclusion are similar to (or even the same as) the grounds for deportation. Furthermore, procedurally, these hearings were very similar.
162 See Black, supra note 6, at 302. Black writes, “The ability of an individual to represent himself must always be measured against the complexity of the legal proceeding itself.” Id.
163 See id.
164 See Pilcher, supra note 101, at 269 & n.1; Black, supra note 6, at 302.
165 See Castro-Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988) (citing Elizabeth Hull, Without Justice for All: The Constitutional Rights of Aliens 107 (1985)).
166 See generally INA § 237.
167 See id.
168 See id.
169 See id. § 101.
170 See INA § 237(a)(2).
171 See id. For example, § 237(a)(2)(A)(iii) reads: “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”
172 See supra note 136.
173 See id.
174 See supra notes 133–35 and accompanying text.
175 See INA § 101 (a)(43). The definition of aggravated felony lists over twenty broad categories of crimes. See id. The statute does not indicate in detail which crimes among the numerous state and federal violations actually fit into these categories. See id.
176 See id. § 240(c)(1)(A); 8 C.F.R. § 240.41(a).
177 Case law has established definitions for many vague terms, such as “crime of moral turpitude,” and the immigrant can generally rely on the IJ’s proper application of the law. At least within each circuit, there are well-established lists of crimes that qualify as crimes of moral turpitude. Yet even within this long-standing category of crimes, there is debate when the Service labels, for the first time, a specific criminal violation a crime of moral turpitude or when a change is made to the elements of a particular crime.
178 See Taylor, supra note 152, at 1666.
179 See id. Taylor points out that attorneys “focus attention on critical legal issues, such as questions of statutory interpretation (a function that is particularly important with the enactment of [the IIRIRA]).” Id.
180 See generally Understanding the New Immigration Law: How the Law Affects Immigrants and Asylum Seekers (Iris D. Gomez et al. eds., 1997).
181 See infra notes 182–87 and accompanying text. Another telling example of the uncertainty of the constitutionality of the INA is the mandatory detention provision. See INA § 236(c). As of September 30, 1999, 10 federal district courts had held that the provision is unconstitutional. 236(c) Scorecard, 4 Bender’s Immigr. Bull. 1146, 1146 (1999). In addition, 20 other district courts have found that the provision did not apply on statutory grounds. See id. at 1146–47.
182 See generally Henderson v. INS, 157 F.3d 106 (2d Cir. 1998); Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998).
183 See IIRIRA § 304.
184 See, e.g., Henderson, 157 F.3d at 109–12.
185 See id. (citing Matter of Soriano, Int. Dec. No. 3289, 1996 WL 426888 (Op. Att’y Gen. Feb. 21, 1997)).
186 144 F.3d at 113.
187 See id. at 134.
188 See Taylor, supra note 153, at 1666; Black, supra note 6, at 303 (noting that the “idea of seeking judicial review before the Circuit Courts of Appeals or by habeas corpus before the district judge, even if presented to the alien, will often be foreign to his experience”).
189 See Taylor, supra note 153, at 1666; Black, supra note 6, at 303.
190 See infra Part III.B.
191 See Aguilera-Enriquez v. INS, 516 F.2d 565, 568 (6th Cir. 1975). Admittedly, the court does not specifically compare the procedures in a probation revocation hearing with those in a deportation proceeding, but it does cite Gagnon and adopts the case-by-case approach to appointed counsel. See id. at 568.
192 See, e.g., Black, supra note 6, at 295–96.
193 See id.
194 See Legomski, supra note 23, at 540, 541.
195 See INA § 240(b)(1).
196 See 8 CFR § 240.2; Black, supra note 6, at 295–96.
197 See Haney, supra note 45, at 184.
198 See generally Deborah E. Anker, Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment, 19 N.Y.U. Rev. L. & Soc. Change 433 (1992). Professor Anker’s study incorporated observations and data from 193 hearings in an Immigration Court “located in a major urban setting.” See id. at 443 & n.31. Interviews were conducted with hearing participants, IJs throughout the country, and other Justice Department officials. See id. at 443 n.32.
199 See id. at 489.
200 See id.
201 See id. at 515.
202 See id. at 521.
203 For example, relief such as voluntary departure and cancellation of removal are discretionary forms of relief. See INA §§ 240A, B (stating that the Attorney General “may” order relief). Thus, in addition to showing that he is statutorily eligible, an immigrant must show that he merits such relief. See id. Although the Board of Immigration Appeals has outlined factors that should be taken into consideration when exercising discretionary powers, the IJ’s subjective judgment of the immigrant’s character will undoubtedly determine the outcome. See Anker, supra note 198, at 515.
204 See Anker, supra note 198, at 494.
205 Both the ABA Model Rules of Professional Conduct and ABA Model Code of Professional Responsibility require that an attorney zealously represent his clients. See Model Rules of Professional Conduct Preamble, Scope, and Terminology (1997); Model Code of Professional Responsibility DR 7-101 (1983).
206 See Model Rules of Professional Conduct Preamble, Scope, and Terminology; Model Code of Professional Responsibility DR 7-101.
207 See, e.g. INA § 240(b)(1) (granting IJ authority to interrogate, examine, and cross-examine the non-citizen and any witnesses).
208 See Rawitz, supra note 41, at 454–55.
209 See id. at 454. When they were investigating cases, they were called “examining officers,” and when they were conducting a hearing, they were called “presiding inspectors.” Id. Although the presiding inspector could not also conduct a hearing on a case he had investigated unless the alien consented, he could conduct hearings on cases similar to those he had investigated. See id.
210 However, it was not until 1983 that IJs officially separated from the Service. See Daniel Kanstroom, Hello Darkness: Involuntary Testimony and Silence as Evidence in Deportation Proceedings, 4 Geo. Immigr. L.J. 599, 620 (1990).
211 See id. at 619; Anker, supra note 198, at 496.
212 INA § 240(b)(1).
213 With regard to IJ’s questions in asylum cases, Anker writes that “judicial activism can operate neutrally: a judge can ask questions which both test the veracity of applicant’s testimony and also assist her in developing facts which help establish her claim.” Anker, supra note 198, at 496.
214 See id. at 489. Anker observed that “the perception arose in many cases that applicants faced two, instead of one, opposing counsels.” Id.
215 See id. at 496.
216 See id. at 498–99.
217 With regard to many discretionary decisions, the IJ’s perception can be determinative. See Anker, supra note 198, at 515.
218 See Black, supra note 6, at 303.
219 See id.
220 See id.
221 See David H. Williams, What to Do When Your Witness Goes Haywire: Getting the Direct Examination Back on Track, Trial, May 1993, at 118, 118.
222 Id.
223 See Anker, supra note 198, at 527. Anker points out that asylum applicants are “often overwhelmed by the unfamiliar and confusing atmosphere of the proceeding.” Id.
224 See id.; Black, supra note 6, at 301.
225 See Anker, supra note 198, at 527; Black, supra note 6, at 301.
226 See Williams, supra note 221, at 121.
227 See Bill Ong Hing Et Al., Winning 212(c) Cases § 8.4 (Supp. 1994).
228 See id. at § 8.5.
229 See supra note 224.
230 See Hing, supra note 227, at § 8.7.
231 See id.
232 See id.
233 Likewise, counsel is in a better position to make procedural objections throughout the hearing. See Gordon, supra note 39, at 878.
234 See In re C-V-T, Int. Dec. 3342, 1998 BIA LEXIS 11, at *10–11 (BIA Feb. 12, 1998) (citing Matter of Marin, 16 I&N Dec. 581, 584–85 (BIA 1978)).
235 See infra notes 236–37.
236 See Hing, supra note 227, at § 8.2. For example, in establishing rehabilitation, letters and evaluations from experts should be submitted as well as favorable parole or probation reports, evidence of academic achievement, and awards for community service or excellent job performance. See id.
237 See id. Counsel is particularly helpful where the non-citizen is detained by the Service under INA § 236 and, thus, less able to collect documentation.
238 See 8 C.F.R. § 240.11(a)(2) (“The Immigration Judge shall inform the alien of his of her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing.”).
239 See Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989). The petitioner claimed that he was eligible for relief, although he was unaware of this fact at his deportation proceeding because the IJ failed to advise him about his apparent eligibility. See id. at 422. The Court of Appeals found that the record indicated, by inference, that petitioner may be eligible for relief. See id. Under these circumstances, the IJ was required to inquire further into petitioner’s circumstances to find out if he was eligible. See id. at 423.
240 See id.
241 See id. at 422.
242 Id.
243 See id. (“Until the [alien] himself or some other person puts information before the judge that makes such eligibility ‘apparent,’ this duty does not come into play.”) (quoting Bu Roe v. INS, 771 F.2d 1328, 1334 (9th Cir. 1985)).
244 Moran-Enriquez illustrates this point. The petitioner had been admitted to the United States on a visa available to immediate relatives of US citizens. See Moran-Enriquez, 884 F.2d at 421. Based on this fact, the Immigration Judge should have explored the possibility that the petitioner was eligible for § 212(h), which was available for immediate relatives. See id. at 422.
245 See infra notes 255–56 and accompanying text.
246 See id.
247 This practitioner’s manual spends a whole section stressing the importance of building the relationship with the client and describing methods that will allow the relationship to develop. See id. at § 5. The book emphasizes the need to meet with the client numerous times both to build trust and to gather more information that will better support the case. See id. at § 5.2. Consequently, it is unrealistic to expect an IJ to serve as an adequate substitute.
248 See Hing, supra note 227, at § 8.
249 See supra notes 235–37 and accompanying text.
250 See 516 F.2d 565, 569 (6th Cir. 1975).
251 See id. at 568–69.
252 See id. at 569.
253 See id. at 573 (DeMascio, J., dissenting) (stating that the majority’s approach “second guess[es] the record, a record made without petitioner’s meaningful participation” and that the court should not “speculate at this stage what contentions appointed counsel could have raised before the immigration judge”).
254 See id. Furthermore, the court rejected the notion that even in cases that appear to be clear cut—for example, a conviction for an aggravated felony (rendering an immigrant deportable and ineligible for relief)—the assistance of an attorney may reveal that the case is not so clear. See id. at 569. Although Aguilera-Enriquez held that the Service is not required “to conduct an inquiry into each potential deportee’s criminal record to ascertain whether a post-conviction motion is likely to overturn his conviction,” post-conviction relief may be a viable option for some immigrants. See id. at 571.
255See supra Part II.B.
256See supra Part II.A.
257See supra Part III.